(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "International law topics and discussions, 1905"

U. S. NAVAL WAR COLLEGE. 



INTERNATIONAL LAW TOPICS 
AND DISCUSSIONS- 



1905. 



WASHINGTON : 

GOVERNMENT PRINTING OFFICE, 

1906. 



PREFACE. 



The Navy Department, as has been the practice in recent years, 
assembled at the Naval War College on June 1, 1905, a conference of 
officers, a majority of whom were of high rank and long experience, 
to occupy four months in the discussion of the battle tactics and strat- 
egy of the fleet, and of those unsettled questions of international law 
which at times have seemed to threaten universal war. 

The topics considered in this volume are of vital interest, and it is 
desirable to make clear the manner in which the work was performed. 
They were formulated before the opening of the conference by the 
lecturer, Mr. George Grafton Wilson, professor in Brown University, 
in consultation with the president and staff of the War College. The 
officers were divided into committees when the conference assembled, 
and at stated intervals the committees submitted reports upon the 
several topics; the reports were then fully and freely discussed in a 
general conference participated in by the lecturer, the president and 
staff of the college, and all the officers in attendance. The conclusions 
published are those accepted in the general conference and may be 
fairly held to be without bias, since it is evident that in the future the 
United States may be affected either as neutral or as belligerent, and 
since the topics do not relate to questions pending. 

The field is wide and the time limited, but the work is justified, if 

besides increasing our knowledge it has contributed in any degree to 

the formulation of agreements tending to avert or ameliorate war. 

C. S. Sperrv, 

Captain, U. S. Navy, President. 
Naval War College, 

Newport, R. L, February 23, 1906. 

3 



TABLE OF CONTENTS. 



Topic I. — Inviolability of private property at sea. 

Page. 

Conclusion 9 

Notes 9 

Attitude of the United States 9 

Attitude of other powers 14 

Opinions on exemption 15 

General conclusions as to policy of capture 17 

Treatment of special vessels 19 

Regulation 20 

Topic II. — Contraband of war. 

Conclusion 21 

Notes 21 

The nature of contraband; early opinions 21 

Opinions of United States courts 23 

Mr. Balfour' s opinion in 1904 24 

Treaty specifications in regard to contraband 24 

Declarations in regard to contraband 25 

Prize court decisions 29 

Protests against Russian attitude, 1904-5 31 

Conclusion 47 

Topic III. — Restriction of visit and search. 

Conclusion 48 

Notes 48 

Restriction of visit and search 48 

Method and scope of visit and search 53 

Limitations on visit and search 59 

Conclusion 60 

Area of permissible visit and search 60 

Conclusion as to limitation of area 61 

General conclusion 61 

Topic IV. — Destruction of captured vessels. 

Conclusion 62 

Notes 62 

Two kinds of prize 62 

Cases involving the destruction of captures 62 

Regulations in regard to destruction before adjudication 64 

Neutral restriction of entrance of prize 68 

Opinions in regard to destruction of captured vessels 69 

Conclusion 75 

5 



6 TABLE OF CONTENTS. 

Topic V. — Continuous voyage. 

Page. 

( onclusion 77 

X< >tes 77 

Development of doctrine of continuous voyage 77 

Extension of the doctrine of continuous voyage 82 

Importance of destination of vessel 98 

Question of destination of cargo in South African war 95 

Other cases involving destination of cargo 100 

Rules and regulations as to destination 103 

( '(inclusion 103 

Regulation 1 0(3 

Topic VI. — Declaration of Paris. 1856. 

Conclusion 107 

X« »tes 107 

Recognition of rights of those engaged in maritime commerce. 107 

The Declaration of Paris, 1856 108 

Protocol No. 24 110 

Attitude of the United States Ill 

"Privateering is and remains abolished" 113 

Attitude of the United States on abolition of privateering 116 

Free ships, free goods 117 

Free goods always free 121 

Blockades 122 

What is blockade? 124 

Conclusion 1 30 

Topic VII. — Hague declarations and wishes. 

Conclusion 132 

Notes 1 34 

General 134 

The use of balloons 135 

Conclusion 139 

Projectiles diffusing gases 139 

Explosive bullets 14] 

Conclusion 144 

New types of guns 145 

Conclusion 146 

Bombardment of open towns 146 

Conclusion . 146 

Topic VIII. — The use of mines. 

Conclusion 147 

Notes 147 

Certain questions 147 

Use of mines in general 147 

Limitations on use of mines 148 

Conclusion 153 



TABLE OF CONTENTS. 7 

Topic IX. — Internment of belligerent vessels. 

Page. 

Conclusion 1 54 

Notes 154 

Sojourn of vessel of one belligerent when vessel of other bel- 
ligerent is within the port 154 

Entrance and sojourn for repairs and entrance and sojourn 
for supplies 155 

Conclusion 170 

Topic X. — Unneutral service. 

Conclusion 171 

Notes 171 

Development of doctrine of neutrality 171 

British opinions distinguishing service from contraband 174 

Recent British opinions 175 

American opinions distinguishing service from contraband .. 177 

Recent continental opinion 179 

Names given to service 179 

Unneutral service and contraband 180 

Forms of unneutral service „__ 181 

British Manual 186 

Conclusion 187 

Japanese regulations governing captures at sea 191 

Appendix. 



INTERNATIONAL LAW TOPICS AND 
DISCUSSIONS. 



Topic I. 



It was voted at the conference at The Hague in 1899 
that 

"The conference expresses the wish that the proposal, 
which contemplates the declaration of the inviolability of 
private propert} r in naval warfare, may be referred to a 
subsequent conference for consideration." 

In view of the above, what regulations should be made 
in regard to private property at sea in time of war? 

CONCLUSION. 

The following regulations should be made in regard to 
private property at sea in time of war: 

Innocent neutral goods and ships are not liable to cap- 
ture. 

Innocent enemy goods and ships, except vessels pro- 
pelled by machinery and capable of keeping the high seas, 
are not liable to capture. 

DISCUSSION AND NOTES. 

Attitude of the United States. — Franklin very early 
expressed a general principle for which the United States 
has stood. He said, in a letter to Messrs. D. Wendorp 
and Thomas Hope Heyhger: 

Passy, 8 June, 1781. 
There are three employments which I wish the law of nations 
would protect, so that they should never be molested or interrupted 
by enemies even in time of war. I mean farmers, fishermen, and 
merchants, because their employments are not only innocent, but are 
for common subsistence and benefit of the human species in general. 



10 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

As men grow more enlightened, we may hope this will in time be the 
case. Till then we must submit, as well as we can, to the evils we 
can not remedy. 

Franklin in 17S3 .sent an article to Richard Oswald, of 
which he said: "I rather wish than expect that it will be 
adopted." 

ARTICLE. 

If war should hereafter arise between Great Britain and the United 
States, which God forbid, the merchants of either country then residing 
in the other shall be allowed to remain nine months to collect their 
debts and settle their affairs, and may depart freely, carrying off all 
their effects without molestation or hindrance. And all fishermen, 
all cultivators of the earth, and all artisans or manufacturers unarmed, 
and inhabiting unfortified towns, villages, or places, who labor for 
the common subsistence and benefit of mankind and peaceably follow 
their respective employments, shall be allowed to continue the same, 
and shall not be molested by the armed force of the enemy in whose 
power by the events of the war they may happen to fall; but if any- 
thing is necessary to be taken from them, for the use of such armed 
force, the same shall be paid for at a reasonable price. And all mer- 
chants or traders with their unarmed vessels employed in commerce, 
exchanging the products of different places, and thereby rendering 
the necessaries, conveniences, and comforts of human life more easy 
to obtain and more general, shall be allowed to pass freely, unmo- 
lested. And neither of the powers parties to this treaty shall grant 
or issue any commission to any private armed vessels empowering 
them to take or destroy such trading ships or interrupt such com- 
merce. (Sparks, The Works of Franklin, IX, p. 469.) 

The first part of this proposed article is now generally 
recognized as binding throughout the world. States have 
been more reluctant to adopt the principles in regard 
to "merchants or traders with their unarmed vessels." 
The proposition in regard to privateering has become a 
generally recognized principle. 

The United States has uniformly endeavored to obtain 
the broadest freedom for commerce in time of war. 

Exemption from capture has been extended to the fol- 
lowing when innocently employed: To 

(1) vessels engaged in scientific work and in exploration; 

(2) coast-fishing vessels innocently employed; 

(3) cartel ships acting within their permitted sphere; 

(4) hospital and other Red Cross vessels. 



EARLY ATTITUDE OF UNITED STATES. 11 

The treaty between the United States and Prussia of 
1785, in Article XXIII, provided that — 

all merchant and trading vessels employed in exchanging the products 
of different places, and thereby rendering the necessaries, conven- 
iences, and comforts of human life more easy to be obtained and more 
general, shall be allowed to pass free and unmolested; and neither of 
the contracting powers shall grant or issue any commission to any pri- 
vate armed vessels, empowering them to take or destroy such trading 
vessels or interrupt such commerce. (Treaties and Conventions, 
1776-1887, pp. 905-906.) 

This provision did not, however, reappear in the treaty 
of 1799, which took the place of the treaty of 1785, which 
had expired in 1786 by limitation. 

It is evident that Franklin's position was the ideal for 
which the United States was striving-. It was fully rec- 
ognized that it was yet to be attained. 

In a long letter to the minister of foreign affairs of the 
French Republic, of January 27, 1798, signed by Charles 
C. Pinckney, J. Marshall, and E. Geny, occurs the fol- 
lowing well-considered statement in regard to the relations 
of ships and goods: 

This principle is to be searched for in the law of nations. That law 
forms, independent of compact, a rule of action by which the sover- 
eignties of the civilized world consent to be governed. It prescribes 
what one nation may do without giving just cause of war, and what, 
of consequence, another may and ought to permit without being con- 
sidered as having sacrificed its honor, its dignity, or its independence. 

What, then, is the doctrine of the law of nations on this subject? 
Do neutral bottoms of right, and independent of particular compact, 
protect hostile goods? The question is to be considered on its mere 
right, uninfluenced by the wishes or the interests of a neutral or 
belligerent power. 

It is a general rule that war gives to a belligerent power a right to 
seize and confiscate the goods of his enemy. However humanity may 
deplore the application of this principle there is perhaps no one to 
which man has more universally assented, or to which jurists have 
more uniformly agreed. Its theory and its practice have unhappily 
been maintained in all ages. This right, then, may be exercised on 
the goods of an enemy wherever found unless opposed by some 
superior right. It yields by common consent to the superior right of 
a neutral nation to protect, by virtue of its sovereignty, the goods of 
either of the belligerent powers found within its jurisdiction. But 
can this right of protection, admitted to be possessed by every govern- 



12 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

raent within its mere limits in virtue of its absolute sovereignty, be 
communicated to a vessel navigating the high seas? 

It is supposed that it can not be so communicated, because the ocean 
being common to all nations no absolute sovereignty can be acquired 
in it. The rights of all are equal, and must necessarily check, limit, 
and restrain each other. The superior right, therefore, of absolute 
sovereignty to protect all property within its own territory ceases to be 
superior when the property is no longer within its own territory, and 
may be encountered by the opposing acknowledged right of a belliger- 
ent power to seize and confiscate the goods of his enemy. If the 
belligerent permits the neutral to attempt, without hazard to himself, 
thus to serve and aid his enemy, yet he does not relinquish the right 
of defeating that attempt whenever it shall be in his power to defeat 
it. Thus it is admitted that an armed vessel may stop and search at 
sea a neutral bottom, and may take out goods which are contraband of 
war, without giving cause of offense or being supposed in any degree 
to infringe neutral rights. But this practice could not be permitted 
within the rivers, harbors, or other places of a neutral where its sov- 
ereignty was complete. It follows, then, that the full right of afford- 
ing protection to all property whatever within its own territory, which 
is inherent in every government, is not transferred to a vessel navi- 
gating the high seas. The right of a belligerent over the goods of his 
enemy within his reach is as complete as his right over contraband of 
war; and it seems a position not easily to be refuted that a situation that 
will not protect the one will not protect the other. A neutral bottom, 
then, does not, of right, in cases where no compact exists, protect 
from his enemy the goods of a belligerent power. (Vol. II, American 
State Papers, Foreign Relations, p. 171.) 

The American envoys also affirm that — 

The desire of establishing universally the principle that neutral bot- 
toms shall make neutral goods is, perhaps, felt by no nation on earth 
more strongly than by the United States. Perhaps no nation is more 
deeply interested in its establishment. It is an object they keep in 
view, and which, if not forced by violence to abandon it, they will 
pursue in such manner as their own judgment may dictate as being 
best calculated to attain it; but the wish to establish a principle is 
essentially different from a determination that it is already established. 
The interests of the United States could not fail to produce the wish; 
their duty forbid them to indulge it when deciding on a mere right. 
However solicitous America might be to pursue all proper means, 
tending to obtain for this principle the assent of all or any of the mari- 
time powers of Europe, she never conceived the idea of obtaining that 
consent by force. (Ibid., p. 172.) 

President Monroe's message of December 2, 1823, com- 
menting on the position taken by France in the recent war 
with Spain, states that instructions have been given to the 



LATER ATTITUDE OF UNITED STATES. 13 

United States ministers abroad to make proposals to their 
respective governments which should look to "the aboli- 
tion of private war on the sea." The same attitude was 
also maintained in the message of December 7, 1824. No 
international agreement was reached, however. 

In the message of December 4, 1854, President Pierce, 
after considerable discussion of the rights of property at 
sea, says: 

Should the leading powers of Europe concur in proposing as a rule 
of international law to exempt private property on the ocean from 
seizure by public armed cruisers as well as by privateers, the United 
States will readily meet them upon that broad ground. 

The treaty of the United States with Russia, negotiated 
by Secretaiy W. L. Marcy in 1854 and still in force, in 
Article I provides: 

The two High Contracting Parties recognise as permanent and 

immutable the following principles, to wit: 

1st. That free ships make free goods, that is to say, that the effects 
or goods belonging to subjects or citizens of a Power or State at war 
are free from capture and confiscation when found on board of neutral 
vessels, with the exception of articles contraband of war. 

2d. That the property of neutrals on board an enemy's vessel is not 
subject to confiscation unless the same be contraband of war. They 
engage to apply these principles to the commerce and navigation of 
all such Powers and States as shall consent to adopt them on their 
part as permanent and immutable. 

To the proposition that the United States accede to the 
Declaration of Paris in 1856, President Pierce, in his mes- 
sage of December 2, 1856, states that the Government is 
desirous to secure "the immunity of private property on 
the ocean from hostile capture. To effect this object, it 
is proposed to add to the declaration that ' privateering is 
and remains abolished' the following amendment: 

and that the private property of subjects and citizens of a belligerent 
on the high seas shall be exempt from seizure by public armed vessels 
of the other belligerent except it be contraband." 

This proposition was at that time favorably received by 
several States. Italy, Prussia, and Russia were prepared 
to accede to the wish of the United States. Some of the 
leaders in France were similarly inclined. Great Britain 
was, however, unwilling to give assent. 



14 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

The following action was recently taken in the United 
State-: 

Resolved by the Senatt and House of Representatives in tin United States 
of America in Congress assembled, That it is the sense of the Congress 
of the United States that it is desirable, in the interest of uniformity 

of action by the maritime States of the world in time of war that the 
President endeavor to bring about an understanding among the prin- 
cipal maritime powers with a view of incorporating into the perma- 
nent law of civilized nations the principle of the exemption of all 
private property at sea, not contraband of war, from capture or de- 
struction by belligerents. 
Approved April 28, 1904. 

The position of the United States in the exemption of 
private property at sea in time of war is not based on the 
consideration advanced in certain States, viz. that unless 
private property is exempt the State may be cut off from 
supplies. The United States* population could subsist 
without foreign commerce for a considerable time with 
little inconvenience. 

Attitude <>f other powers, — In the war of 186b Austria. 
Italy, and Prussia adopted the principle of immunity of 
private property at sea. The same principle was not 
adopted in the Franco-Prussian war of 1870. though Prus- 
sia was inclined to urge it on France. The action of Italy 
in 1866 was in accord with the provisions of her merchant 
maritime code of 1805, which provided that in time of 
war enemy property on the sea. except contraband, was 
inviolable. There have also been certain instances, as in 
the Chinese troubles of 1860, where exemptions have been 
made on grounds of expediency. Article XII of the 
treaty between the United States and Italy of February 
26, 1871, provides that — 

The High Contracting Parties agree that in the unfortunate event 
of a war between them the private property of their respective citi- 
zens and Bubjects, with the exception of contraband of war, shall be 
exempt from capture or seizure on the high seas or elsewhere by the 
armed vessels or by the military forces of either party, it being under- 
stood that this exemption shall not extend t<> vessels and their cargoes 
which may attempt to enter a port blockaded by the naval forces of 
either party. (Compilation of Treaties in Force, 1778-1904, p. 453.) 



OPINIONS ON EXEMPTION OF PRIVATE PROPERTY. 15 

These are some of the main cases in which the principle 
of immunity of enemy private propert} T at sea in time of 
war has been adopted in practice or treaty. 

Neither practice or treat} T precedent offer sufficient basis 
for regarding the principle as in any sense a recognized one. 

Opinions on exemption. — The Institute of International 
Law in its session of 1877 declared that "Private property, 
whether neutral or enemy, sailing under enemy flag or 
neutral flag, is inviolable." 

In a letter of Professor Holland, of Oxford, quoted at 
the meeting of the International Law Association in 1900, 
the following statement is made: 

The question of immunity seems to me to be rather one for politicians 
and shipowners than for lawyers. It is probable that immunity would 
now be in the interest of Great Britain, but, if so, the continental Gov- 
ernments, whatever may be continental legal opinion, are not likely 
to pledge themselves to it, and, even if they did enter into a general 
convention to that effect could hardly be relied upon to stand by their 
bargain. I doubt the expediency of making treaties about lines of 
conduct which may affect national existence. The strain upon them 
is likely to be too great for endurance, and one is afraid that one's 
country might be lulled into security by a paper contract which might 
be torn up on the outbreak of hostilities. 

Sir John Macdonell, in writing of England's position in 
1904, said: 

It appears to me that more and more the interests of England 
become those of a neutral state and that it would be to her advan- 
tage on the whole that private property on sea were exempt from cap- 
ture * * *. It is is inconceivable that the destruction of com- 
merce at sea of any rival could determine in our favor the issue of a 
war in which we were engaged ; while the systematic harrying of our 
trade might in certain circumstances be a serious blow to England. 
(Nineteenth Century, Nov., 1904, p. 699.) 

In another place the same writer, treating of private 
property at sea, says: 

For all concerned, but especially for England, which stands to lose 
most, it would probably have been well if the offer held out last cen- 
tury by Jefferson and Franklin, and repeated by the United States in 
1856 and 1870, to exempt such property from capture had been adopted. 
(Journal Royal United Service Institution, XLII, pt. 2, p. 796.) 



16 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

In Atlay's recent edition of Wheaton's International 
Law, a position opposed to exemption of capture of pri- 
vate property on the high seas is assumed. The argu- 
ments are stated as follows: 

The indiscriminate seizure of private property on land would cause 
the most terrible hardship without conferring any corresponding ad- 
vantage on the invader. It can not be effected without in some meas- 
ure relaxing military discipline and is sure to be accompanied by 
violence and outrage. On the other hand, the capture of merchant 
vessels is usually a bloodless act, most merchant vessels being incapa- 
ble of resisting a ship of war. Again, property on land consists of 
endless varieties, much of it being absolutely useless for any hostile pur- 
pose, while property at sea is almost always purely merchandise and 
thus is part of the enemy's strength. It is, moreover, embarked vol- 
untarily and with a knowledge of the risk incurred, and its loss can 
be covered by insurance. An invader on land can levy contributions 
or a war indemnity from a vanquished country; he can occupy part of 
its territory and appropriate its rates and taxes, and by these and 
other methods he can enfeeble the enemy and terminate the war. 
But in a maritime war a belligerent has none of these resources, and 
his main instrument of coercion is crippling his enemy's commerce. 
If war at sea were to be restricted to the naval forces, a country pos- 
sessing a powerful fleet would have very little advantage over a coun- 
try with a small fleet or with none at all. If the enemy kept his 
ships of war in port, a powerful fleet, being unable to operate against 
commerce, would have little or no occupation. The United States pro- 
posed to add to the declaration of Paris a clause exempting all private 
property on the high seas from seizure by public armed vessels of the 
other belligerent, except it be contraband, but this proposal was not 
acceded to. Nor does it seem likely, for the reasons stated above, 
that maritime nations will forego their rights in this respect. (Para- 
graph 355 b). 

Edmund Robertson (late civil lord of the Admiralty) 
summarizes the recent report of the Royal Commission on 
Supply of Food and Raw Material in Time of War, as 
follows : 

(1) The commission has ascertained the extent of our dependence 
for supplies of food and raw material on foreign sources. The prime 
fact is that we import four-fifths of the wheat we consume and that 
our stocks on hand may run down so low as seven weeks' supply. 

(2) The commission was not instructed to deal with exports, but it 
is true, both of our exports and our imports, that on the sea, when 
they are the property of British subjects and are carried in British 
ships, they are liable to seizure and confiscation by an enemy in time 
of war. 



GENERAL CONCLUSIONS AS TO CAPTURE. 17 

(3) It is quite clear that this condition of things necessitates what 
is called a strong fleet, and that, even with a strong fleet, trade will be 
to some extent endangered, supplies to some extent interrupted, prices 
to some extent increased. To what extent the commission was divided 
in opinion. 

(4) The commission accordingly, or rather various sections of the 
commission, have suggested various remedies all of which would 
involve serious public expenditure. But the commission has not found 
it within its province, as understood by the majority, to deal in any 
way with the rule of international law, which the report declares to 
be the cause of all the apprehended dangers. 

(5) This rule has been retained in international law mainly by the 
refusal of Great Britain to consent to its abolition at a time when her 
economical and even her naval position in relation to other nations 
was quite unlike what it is now. 

(6) The rule has been gradually falling into discredit — partially in 
this country, generally in most others. 

(7) There is good ground for thinking that the right of capture is of 
no great value to us, and also that it will not, in fact, be exercised to 
any great extent until the closing stages of the war. 

(8) There is also ground for thinking that, apart from the mere ques- 
tion of supplies, the rule, taken in connection with the declaration of 
Paris, must have the effect of transferring a large portion of our vast 
carrying trade to neutral flags. 

(9) At this very moment the rule has been formally challenged once 
more by the United States Government in its proposals for the new 
Hague conference. 

General conclusions as to policy of capture. — Great 
Britain has until recently particularly opposed the prin- 
ciple of the exemption of private property on the sea 
from capture. There now seems to be a tendency on the 
part of the British to recognize that in modern warfare 
the capture of private propert}^ may be open to question, 
the opinion of some of the best of the English authorities 
being that there is little reason for the continuance of the 
practice. 

There is a growing opinion that the reasons for the cap- 
ture of the enemy's private property at sea are economic 
and political rather than military. The immunity to pri- 
vate property should not, however, be so extended as to in- 
terfere with necessary military operations. It would not 
be reasonable to exempt private property to such an ex- 
tent as to cause the war to be of necessity prolonged or to 
result in greater destruction of life. Imperative military 
16843—06 2 



18 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

necessity, of which the superior officer on the tield of action 
at the time must judge, must override rights of private 
property. The question of damages ma\ T be reserved for 
subsequent settlement. 

Recent wars have shown the course of trade under influ- 
ence of new conditions. 

It has become customary to allow a certain number of 
days of grace during which the vessels of one belligerent 
may enter and depart from the ports of the other belliger- 
ent. Vessels thus sailing are exempt from capture. 

The ease of rapid communication by telegraph and other- 
wise renders the knowledge of the probable outbreak of 
war general. Few vessels will be taken by surprise or 
will start on voyages for ports which will render them 
liable t® capture. 

The practical abandonment of privateering makes cap- 
ture of private property less an object of war. 

The abolition of prize money by some States removes 
one of the stimuli to the capture of private property. 

The development of continental carrying trade has made 
it possible for most States to supply a large portion of 
their needs by overland carriage. In the early days of 
capture of property on the sea overland commerce had not 
received the great impetus due to the development of 
steam and electricity. 

The declaration of Paris of 1856, to the effect that "the 
neutral flag covers enemy's goods, with the exception of 
contraband of war." has made possible the transfer of a 
large portion of the enemy sea commerce to neutral flag 
in time of war. The absence of risk under neutral flag 
will also make possible cheaper rates under neutral flags. 
Under ordinary economic laws commerce would thus go 
to neutrals in time of war. 

In recent wars evidence seems to show that the capture 
of private property has had little influence on the issue of 
the war and has stirred up enmity against the captor. 
In the Franco-Prussian war of 1870 it is reported that not 
more than eighty German vessels were captured. In the 
Spanish- American war, in 1898, comparatively little influ- 



EXPEDIENCY OF CAPTURE OF PRIVATE PROPERTY. 19 

ence was exerted upon the war by the few captures of 
private vessels and property, and it would seem that the 
influence of such capture had been even less in the Russo- 
Japanese war of 1904-5. 

Modern policy seems to show that the capture of private 
property at sea does not necessarily bring any great 
military advantage. It may happen that the military 
strength may be greatly lessened if naval vessels are 
sent in pursuit of vessels bearing private property. The 
cost of pursuit, capture, bringing to port, trial, and con- 
demnation may, and often does, exceed the value of the 
goods and vessel captured. 

The British report of the Royal Commission on Supply 
of Food and Raw Materials in Time of War in 1905 ex- 
presses the opinion that tc the first and principal object of 
both sides, in case of future maritime war, will be to ob- 
tain the command of the sea," and maintains that concen- 
tration of the fleet is necessary to accomplish this purpose. 

The equitable practice of days of grace will probably 
be continued. The use of improved means of communi- 
cation will be extended. Privateering is abandoned. 
Prize money is beginning to be abolished. Land com- 
merce is more and more developed. In time of war com- 
merce is easily transferred to neutral flags. The actual 
influence of the capture of private property does not seem 
to be great. The weakening of a naval force in order to 
pursue and capture private property is of doubtful expe- 
diency. Such considerations as these show wh} T the tend- 
ency to guarantee the exemption of all private property 
at sea in time of war by an international agreement has 
been looked upon with increasing favor. 

The proposed exemption if it extended to all goods and 
property would probably make necessary an extension of 
the list of contraband. Contraband as now used applies 
only to certain classes of goods carried by or belonging to 
neutrals. If enemy propert} T is placed on the same basis 
as neutral property, the doctrine of contraband must be 
interpreted accordingly and the principles enunciated with 
this in view. 



20 INVIOLABILITY OF PRIVATE PROPERTY AT SEA. 

Treatment of special vessels. — The vessels of the enemy 
used in commerce may be enemy private property. Cer- 
tain of these vessels may readily become of great service 
to the eneni} 7 . Vessels of like character if belonging to a 
neutral could not be classed as contraband. Owing to the 
ease with which many types of commercial vessels may be 
converted to warlike uses it seems proper that such agen- 
cies of transportation should not be placed under the 
general exemption. The degree of exemption to be 
extended to vessels may property be left to the belliger- 
ents to determine. 

Considering the general conditions of modern naval 
warfare and commercial relations, as well as the trend of 
opinion, together with the exceptional character of private 
vessels belonging to enenw citizens, an attempt to formu- 
late a proper regulation in regard to the exemption of 
private property at sea may be considered expedient. Of 
course such exemption does not cover property of con- 
traband nature, propert} 7 involved in violation of blockade, 
property involved in unneutral service, or otherwise con- 
cerned directly in the war. The regulation of exemption 
should apply therefore only to innocent property and 
ships. 

Some such regulation in regard to vessels as the follow- 
ing seems to meet the requirements imposed by the above 
discussion and conclusions: 

Innocent private ships, except belligerent vessels pro- 
pelled by machinery and capable of keeping the high seas, 
are not liable to capture. 

It may be said that the word " innocent " applies only to 
such private property or ships as have no direct relation 
to or share in the hostilities. It may be assumed that 
innocent belligerent goods or ships may be taken in case 
of military necessity, and when so taken full remuneration 
shall be paid, after the analogy of similar action on land. 

Regulation. — Innocent neutral goods and ships are not 
liable to capture. 

Innocent enenry goods and ships, except vessels propelled 
by machinery and capable of keeping the high seas, are not 
liable to capture. 



Topic II. 

(a) What should be regarded as absolutely contraband? 

(b) What should be regarded as conditional contraband? 

(c) What are " the circumstances under which food stuffs 
and coal, and raw material, such as cotton, can be declared 
to be contraband?" (Question of Lord Reay in House of 
Lords, April 13, 1905, The London Times, April 14, 1905.) 

CONCLUSION. 

1. Absolute contraband. — When within or destined for 
the territory within the enenry's jurisdiction or for his 
military or naval use the following articles are absolutely 
contraband: 

(a) Military materials, such as weapons, ammunition, etc. 

(b) Instruments solely for use in warlike purposes, as 
machinery for the manufacture of military materials. 

(c) An}^ other articles solely for use in war. 

2. Conditional contraband. — When destined for the 
enemy's military or naval use the following articles are 
contraband: 

Means of subsistence, fuel, means and material for trans- 
portation and communication on land or sea, money, and 
other articles, such as cement, cotton, lumber, etc., of use 
either for warlike or for peaceful purposes. 

DISCUSSION AND NOTES. 

The nature of contraband— Early opinions. — The above 
three questions are so closely related that they may most 
advantageously be considered together under a general 
discussion of contraband. 

While the term contraband does not occur in early codes 
like "II Consolato de Mare," yet the idea was understood. 
Grotius does not use the word contraband, though before 
his time it seems to have been used somewhat in domestic 
law. There is mention of contraband in a treaty between 

21 



22 CONTRABAND OF WAR. 

England and Holland in 1625, the year of the publication 
of Grotius's great work. From this time contraband be- 
came more and more a subject of definition in public inter- 
national law. Grotius, however, gives a clear classification 
of articles of commerce, even though not using the term 
contraband. He enumerates: 

1. Those things which have their sole use in war, such as arms. 

'2. Those things which have ik> use in war, as articles of luxury. 

3. Those things which have use both in war and out of war, as 
money, provisions, ships, and those things pertaining to ships. (De 
Jure Belli et Pacis, III, I, 5. ) 

Grotius further says, in regard to the conditions under 

which articles of the third class may come: 

In the third class, objects of ambiguous use, the state of the war 
is to be considered. For if I can not defend myself except by inter- 
cepting what is sent, necessity, as elsewhere explained, gives us a 
right to intercept it, but under the obligation of restitution, except 
there be cause to the contrary. If the supplies sent impede the exac- 
tion of my rights, and if he who sends them may know this — as if 1 
were besieging a town or blockading a port, and if surrender or peace 
were expected, he will be bound to me for damages; as a person would 
who liberates my debtor from prison, or assists his flight to my injury; 
and to the extent of the damage his property may be taken, and own- 
ership thereof be assumed for the sake of recovering my debt. If he 
have not yet caused damage, but have tried to cause it, I shall have a 
right by the retention of his property to compel him to give security 
for the future by hostages, pledges, or in some other way. But if, be- 
sides, the injustice of my enemy to me be very evident, and he con- 
firms him in a most unjust war, he will then be bound to me not only 
civily, for the damage, but also criminally, as being one who protects 
a manifest criminal from the judge who is about to inflict punishment, 
and on that ground it will be lawful to take such measures against him 
as are suitable to the offense, according to the principles laid down in 
speaking of punishment; and therefore to that extent he may be sub- 
jected to spoliation. (Whewell's translation, Grotius, De Jure Belli 
et Pacis, III, I, 5.) 

Destination was early recognized as an important factor 
in determining the character of goods in time of war. 
This was recognized in treaties and in proclamations. This 
principle seems to have been recognized in some form 
certainty so early as the time of Josephus. The provision 
is inserted in a treaty between France and England in 
1303. An English proclamation of 1625 enumerates as 
prohibited articles of commerce w r ith the enemy "any 



OPINIONS OF UNITED STATES COURTS. 23 

manner of graine, or victualls, or any manner of provi- 
sions to serve to build, furnish, or arme any shipps of 
vvarr, or any kind of munition for warr, or materials for 
the same, being not of the nature of mere merchandize." 
(December 30, 1625.) Gradually the enumeration becomes 
more detailed. On March 4, 1626, a proclamation speak- 
ing of things prohibited says "His Majestie" regards the 
following as such, "ordinance, armes of all sortes, pow- 
der, shott, match, brimstone, copper, iron, cordage of all 
kinds, hempe, faile, canvas, danuce pouldavis, cables, 
anchors, mastes, rafters, boate ores, balcks, capraves, deale 
board, clap board, pipe staves, and vessels and vessel 
staffe, pitch, tarr, rosen, okam, corne, graine, and victualls 
of all sorts, all provisions of shipping, and all munition 
of warr, or of provisions for the same, according to for- 
mer declarations and acts of state, made in this behalf in 
the tyme of Queen Elizabeth, of famous memorie." 

This same proclamation extends the penalty for carry- 
ing contraband to the return " in the same voyage." This 
practice did not, however, continue in favor, and by the 
end of the eighteenth century the penalty for carrying 
contraband was generally considered to be deposited with 
the cargo. 

Opinions of United States Courts. — In the case of The 
Com?)iercen, in 1816, the decision rendered by Stor}^, it is 
stated that — 

By the modern law of nations provisions are not, in general, deemed 
contraband; but they may become so, although the property of a 
neutral, on account of the particular situation of the war or on account 
of their destination. If destined for the ordinary use of life in the 
enemy's country they are not, in general, contraband; but it is if des- 
tined for military use. Hence, if destined for the army or navy of 
the enemy, or for his ports of naval or military equipment, they are 
deemed contraband. (1 Wheaton, U. S. Supreme Court Reports, 387. ) 

The decision rendered by Chief Justice Chase in the 
case of The Peterhoff, in 1866, has been regarded as stating 
the general principles in regard to contraband from the 
point of view of the United States: 

The classification of goods as contraband or not contraband has 
much perplexed text writers and jurists. A strictly accurate and sat- 
isfactory classification is perhaps impracticable; but that which is best 



24 CONTRABAND OF WAR. 

supported by American and English decisions may be said to divide 
all merchandise into three classes. Of these classes, the first consists 
of articles manufactured and primarily and ordinarily used for mili- 
tary purposes in time of war; the second, of articles which may be 
and are used for purposes of war or peace, according to circumstances; 
and the third, of articles exclusively used for peaceful purposes. Mer- 
chandise of the first class, destined to a belligerent country or places 
occupied by the army or navy of a belligerent, is always contraband; 
merchandise of the second class is contraband only when actually des- 
tined to the military or naval use of a belligerent; while merchandise 
of the third class is not contraband at all, though liable to seizure and 
condemnation for violation of blockade or siege. (5 Wallace, U. S. 
Supreme Court Reports, 49. ) 

Mr. Balfour y s opinion in 190 Jf. — Even at present a satis- 
factory classification of contraband does not seem to be 
established. Mr. Balfonr, in a reply to the Shipping Dep- 
utation on August 25, 1904, said: 

I could not give a list of things which are or are not contraband of 
war, nor could any international lawyer fulfill any such demand. But 
the principle we have laid down as, we believe, in absolute conform- 
ity with the laws and practice of nations is that warlike stores carried 
to a belligerent are undoubtedly contraband of war; that coal carried 
to a belligerent for the purpose of aiding him in his warlike operations 
is undoubtedly contraband; that food stuffs carried to an army in the 
field or to a beleaguered fortress, or carried to a foreign country to aid 
the troops or fleet are contraband; but we do not accept the doctrine 
which is apparently laid down — and I lay stress on the word "appar- 
ently" — because there is some ambiguity about it. We do not accept 
the doctrine apparently laid down in the Russian notification that 
coal, food stuffs, cotton, and many other things are absolutely contra- 
band of war, and that the mere fact that they are found on board ship 
justifies the seizure of the goods and, in certain circumstances, the 
capture and retention and confiscation of the vessel. (The Times, 
August 26, 1905. ) 

Treaty specifications in regard to contraband. — The 
United States has certain specific treaty agreements in 
regard to contraband. The treat} T with Bolivia, 1858, 
article 17, provides that under the name contraband shall 
be comprehended: 

1st. Cannons, mortars, howitzers, swivels, blunderbusses, muskets, 
fuses, rifles, carbines, pistols, pikes, swords, sabers, lances, spears, 
halberds and grenades, bombs, powder, matches, balls, and all other 
things belonging to the use of these arms. 

2d. Bucklers, helmets, breastplates, coats of mail, infantry belts, 
and clothes made up in the form and for a military use. 



DECLARATIONS ON CONTRABAND. 25 

3d. Cavalry belts, and horses with their furniture. 

4th. And, generally, all kinds of arms offensive and defensive, and 
instruments of iron, steel, brass, and copper, or any other materials, 
manufactured, prepared, and formed expressly to make war by sea or 
land. (Compilation of Treaties in Force 1789-1904, p. 93.) 

The treaties with Brazil in 1828, with Haiti in 1864, and 
with Italy in 1871 are practically identical. So also is 
that with Colombia of 1816, except that it has an additional 
category. "5th. Provisions that are imported into a be- 
sieged or blockaded place." Some of the earlier treaties 
show the development of lists. The treaty with Sweden 
in 1783 enumerates the following: 

Art. 9. Under the name of contraband or prohibited goods shall be 
comprehended arms, great guns, cannon balls, arquebuses, musquets, 
mortars, bombs, petards, granadoes, saucisses, pitch balls, carriages 
for ordnance, musquet rests, bandoleers, cannon powder, matches, 
saltpetre, sulphur, bullets, pikes, sabres, swords, morions, helmets, 
cuirasses, halberds, javelins, pistols and their holsters, belts, bayonets, 
horses with their harness, and all other like kinds of arms and instru- 
ments of war for the use of troops. (Compilation of Treaties in Force 
1789-1904, p. 746.) 

The treaty with Prussia in 1799 provides that — 

All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, 
balls, muskets, flints, matches, powder, saltpeter, sulphur, cuirasses, 
pikes, swords, belts, cartouch boxes, saddles, and bridles, beyond the 
quantity, necessary for the use of the ship, or beyond that which 
every man serving on board the vessel or passenger ought to have, 
and in general whatever is comprised under the denomination of arms 
and military stores, of what description so ever, shall be deemed ob- 
jects of contraband. (Compilation of Treaties in Force 1789-1904, 
p. 639. ) 

Declarations in regard to contraband. — The following 
declarations have been made in recent } T ears in regard to 
contraband : 

United States. — The term contraband of war comprehends only 
articles having a belligerent destination, as to an enemy's port or fleet. 
With this explanation, the following articles are, for the present, to 
be treated as contraband: 

Absolutely contraband. — Ordnance; machine guns and their appli- 
ances," and the parts thereof; armor plate, and whatever pertains to the 
offensive and defensive armament of naval vessels; arms and instru- 
ments of iron, steel, brass, or copper, or of any other material, such arms 
and instruments being specially adapted for use in war by land or 



26 CONTRABAND OF WAR. 

sea; torpedoes and their appurtenances; eases for mines, of whatever 
material; engineering and transport materials, such as gun carriages, 
caissons, cartridge boxes, campaigning forges, canteens, pontoons; 
ordnance stores; portable range finders; signal flags destined for naval 
use: ammunition and explosives of all kinds; machinery for the manu- 
facture of arms and munitions of war; saltpeter; military accouter- 
ments and equipments of all sorts; horses. 

Conditionally contraband. — Coal, when destined for a naval station, 
a port of call, or a ship or ships of the enemy; materials for the con- 
struction of railways or telegraphs, and money, when such materials 
or money are destined for the enemy's forces; provisions, when des- 
tined for an enemy's ship or ships, or for a place that is besieged. 
(General Order, No. 492, Navy Department, June 20, 1898.) 

Spain. — Under the denomination contraband of war, the following 
articles are included: 

Cannons, machine guns, mortars, guns, all kinds of arms and fire- 
arms, bullets, bombs, grenades, fuses, cartridges, matches, powder, 
sulphur, saltpeter, dynamite, and every kind of explosive, articles of 
equipment like uniforms, straps, saddles, and artillery and cavalry 
harness, engines for ships and their accessories, shafts, screws, boil- 
ers and other articles used in the construction, repair, and arming of 
war ships, and in general all warlike instruments, utensils, tools, and 
other articles, and whatever may hereafter be determined to be contra- 
band. (Article VI, Spanish Decree of April 23, 1898.) 

The continental position has usually been to maintain 
two classes of goods only, i. e., contraband and non- 
contraband. 

The Japanese proclamation of February 10, 1904, fol- 
lows the British and American practice of making a dis- 
tinction between absolute arid conditional contraband: 

Art. XIII. The following goods are contraband of war when they 
are destined to the enemy's territory or to the enemy's army or navy: 

Arms, ammunition, explosives, and materials (including also lead, 
saltpeter, sulphur, etc.), and machines for manufacturing them; 
cement; uniforms and equipment for army and navy; armor plates; 
materials for building ships and their equipments; and all articles to 
be used solely for hostile purposes. 

Art. XIV. The following goods are contraband of war in case they 
are destined to the enemy's army or navy, or in case they are destined 
to the enemy's territory and from the landing place it can be inferred 
that they are intended for military purposes: 

Provisions and drinks; clothing and mi iter ials for clothing; a horses; 
harnesses; fodder; wheeled vehicles; coal and other kinds of fuel; a 



« The words in italics were added to the regulations by an amend- 
ment of February 9, 1905. 



RUSSIAN RULES. 27 

timber; currency; gold and silver bullion; materials for telegraph, 
telephone, and railroad. 

Art. X V. The destination of a vessel is generally considered as also 
the destination of her cargo. 

The Russian rules in regard to maritime prizes were 
approved by the Emperor on March 27, 1895. These 
rules are full, containing 93 articles. The general pro- 
visions are as follows: 

DISPOSITIONS GENERALES. 

Article 1. Les dispositions du present reglement sont applicables a 
tous les cas de prises, sauf ceux qui sont regis par des regies sp£ciales 
resultant de traites passes avec la Russie. 

Remarque. — Des regies speciales sont applicable a la saisie des objets 
appartenant a l'ennemi lorsqu'ils se trouvent sur la cote. 

Art. 2. En vertu de la declaration de Paris du 4/16 avril 1856, les 
regies suivantes sont observees dans 1' application du present regle- 
ment: 1° deslettres de marque ne sont pas delivrees au nom des parti- 
culiers; 2° le pavilion neutre couvre le chargement ennemi, sauf la 
contrebande de guerre; 3° les marchandises neutres, sauf la contre- 
bande de guerre, ne peuvent etre confisquees sous pavilion ennemi; 4° 
le blocus, pour etre considere comme obligatoire, doit etre effectif, 
c'est-a-dire appuye de forces militaires suffisantes pour empecher 
Faeces de la cote ennemie. 

Art. 3. Pour la validite de la prise, il faut qu'elle ait eu lieu par la 
force ouverte ou par une ruse de guerre licite, mais jamais par trahison. 

Art. 4. Le gouvernemert imperial, tout en admettant l'application 
du principe de reciprocite aux dispositions du present reglement limi- 
tatives du droit d'arreter, de visiter, de saisir et de confisquer les 
b.Uiments appartenant a un Etat ennemi ou neutre ou k ses resortis- 
sants, se reserve le droit d'y deroger a l'egard de ceux de ces Etats de 
la part desquels on ne peut en esperer 1' observation, et il reglera sa 
maniere d'agir en cette matiere suivant les circonstances de chaque cas 
particulier. 

Art. 5. Sont considered comme prises: 1° les navires et chargements 
appartenant a l'ennemi, ainsi que les navires et chargements apparte- 
nant aux neutres et 2° les navires et chargements russes, allies ou 
neutres repris a l'ennemi, au cas ou la capture ou reprise a eu lieu 
conformement aux dispositions du present reglement. 

In regard to neutral ships it is provided: 

Art. 11. Les navires de commerce de nationalite neutre sont sus- 
ceptibles de confiscation a titre de prise dans les cas suivants: 1° quand 
ils sont surpris transportant a l'ennemi ou au port ennemi: (a) Des 
armes a, feu et des munitions ainsi que des explosifs en n'importe 
quelle quantite, (b) d'autres objets de contrebande de guerre en 



28 CONTRABAND OF WAR. 

quantity depassant la moitie* du volume ou du poids du chargement, 
{<■] des d£tachements de troupes ennemies, si, dans tons lea cas, il 
n'est pas prouv6 que la declaration de guerre etait rested ignoree du 
capitaine; 2° quand ils aont Burpris violant Le blocua et qu'il n'est pas 
prouve que l'etablissement du blocua 6tait reate* ignore du capitaine, 
3° quand ils resistent A main arnn'c A l'ordre d'arret, A la visite ou A 
la capture; 4° quand ils out participe aux aetes d'hostilite de l'ennemi. 

Art. 12. Le chargement des navires de commerce de nationalite 
neutre est susceptible de confiscation A titre de prise: 1° quand ce 
chargement consiste en contrebande de guerre portee A l'ennemi ou 
dans import ennemi et qu'il n'est pas prouve que la declaration de 
guerre est restee ignoree du capitaine; 2° quand le chargement se 
trouve a bord d'un navire susceptible de confiscation en vertu des 
paragraphes 2— 1 de Particle 11 et qu'il n'est pas prouve* qu'il appar- 
tient a des sujets ou a des neutres etrangers aux actes entrainant la 
confiscation. 

Art. 13. La liste des objets reputes contrebande de guerre est portee 
a la connaissance du public par une declaration speciale. Sont ex- 
empts de confiscations ceux de ces objets qui font partie de l'armement 
et de l'approvisionnement du navire de nationalite neutre. 

In accord with the above article 13, Russia issued the 
following rules early in the war with Japan in 1904: 

6. The following articles are deemed to be contraband of war: 

(1) Small arms of every kind, and guns, mounted or in sections, as 
well as armor plates; 

(2) Ammunition for firearms, such as projectiles, shell fuses, bul- 
lets, priming, cartridges, cartridge eases, powder, saltpeter, sulphur; 

(3) Explosives and materials for causing explosions, such as torpe- 
does, dynamite, pyroxyline, various explosive substances, wire con- 
ductors, and everything used to explode mines and torpedoes; 

(4) Artillery, engineering, and camp equipment, such as gun car- 
riages, ammunition wagons, boxes or packages of cartridges, field 
kitchens and forges, instrument wagons, pontoons, bridge trestles, 
barbed wire, harness, etc.; 

(5) Articles of military equipment and clothing, such as bandoliers, 
cartridge boxes, knapsacks, straps, cuirasses, intrenching tools, drums, 
pots and pans, saddles, harness, completed parts of military uniforms, 
tents, etc. ; 

(6) Vessels bound for an enemy's port, even if under a neutral com- 
mercial flag, if it is apparent from their construction, interior fittings, 
and other indications that they have been built for warlike purposes, 
and are proceeding to an enemy's port in order to be sold or handed 
over to the enemy; 

(7) Boilers and every kind of naval machinery, mounted or un- 
mounted; 

(8) Every kind of fuel, such as coal, naphtha, alcohol, and other 
similar materials; 



PRIZE COURT DECISIONS 29 

(9) Articles and materials for the installation of telegraphs, tele- 
phones, or for the construction of railroads; 

(10) Generally, everything intended for warfare by sea or land, as 
well as rice, provisions, and horses, beasts of burden, and other ani- 
mals, which may be used for a warlike purpose, if they are trans- 
ported on the account of, or are destined for, the enemy. 

7. The following acts, forbidden to neutrals, are assimilated to con- 
traband of war: The transport of the enemy's troops, of his dispatches 
and correspondence, the supply of transports and war ships to the 
enemy. Neutral vessels captured in the act of carrying contraband of 
this nature may, according to circumstances, be seized and even con- 
fiscated. (Rules of February 14, 1904.) 

This Russian declaration in regard to contraband has 
called forth definite statements in regard to the position 
which certain neutral Governments proposed to assume. 
Various protests against the extreme position of Russia 
were lodged with that Government. 

Prize court decisions. — Decisions have been made in 
accord with the Russian enumeration. These decisions 
of the Russian prize courts in some instances have been 
called in question. In some quarters this questioning of 
the decision of a prize court has been regarded as contrary 
to international comity if not to law. Such statements 
have been quoted as that of Walker's in regard to the 
regular prize court: 

That prize court can, by the nature of the case, be only the prize 
court of the captor, since, on the one hand, no independent belligerent 
will submit the legality of his conduct to the determination of third 
powers, and, on the other hand, no neutral third power can consist- 
ently with neutrality interfere between captor and captured. It has 
accordingly become well-recognized law that, in general, the jurisdic- 
tion of the prize court of the captor is in prize questions exclusive and 
the judgment of that court on a point within its competence is con- 
clusive against the world. (Manual of Public International Law, p. 
151.) 

Prize courts, however, are not supposed to be prejudiced, 
though undoubtedly the local conditions may sometimes 
influence judgments. 

Sir William Scott, in the case of the Maria, in 1799, de- 
clared the purpose of the prize court to be — 

to administer with indifference that justice which the law of nations 
holds out, without distinction to independent States, some happening 
to be neutral and some to be belligerent. The seat of judicial author- 



30 CONTRABAND OF WAR. 

ity is, indeed, locally here, in the belligerent country, according to the 
known law and practice of nations; but the law itself has do locality. 
(1 C. Robinson's Admiralty Reports, 340.) 

In supporting the position that a neutral nation is not 
bound to abide by the decision of a prize court, if such 
court is not properly constituted and does not respect inter- 
national law. Mr. Balfour, in the House of ('ominous on 
August 11. 1904, said: 

I must traverse the doctrine that when any prize court has given a 
decision, if the decision is contrary to the law of nations, it is to be 
accepted by the neutral. No neutral, doubtless, would desire to quar- 
rel with the decision of a perfectly constituted prize court of a bellig- 
erent country dealing with these matters; but if it be found that those 
prize courts do habitually condemn as contraband of war things which 
the law of nations says are not unconditional contraband of war, I do 
not think it would be possible for the neutral to sit down absolutely 
quiescent under a decision of that character. 

Great Britain also acted in accord with this principle 
in asserting that she could not recognize as binding the 
decision of a prize court which should attempt to maintain 
the declaration of France in 1885 that rice bound for north 
China ports would be regarded as contraband. (Parlia- 
mentary Papers, France. No. 1, 1885.) 

It must be observed that this position does not com- 
pletely accord with the position taken in Holland's British 
Admiralty Manual of Prize Law. which asserts that — 

It is a part of the prerogative of the Crown during the war to extend 
or reduce the lists of articles to be held absolutely or conditionally con- 
traband, subject, however, to any treaty engagements binding upon 
Great Britain. (No. 65.) 

Nor does this clause of the Admiralty Manual accord 
with the position taken by other States during the Russo- 
Japanese war in 1904. The States protesting against the 
classification of contraband made by Russia asserted that 
such classification could not be arbitrarily extended, but 
should be in accord with international law. 

At the meeting of the Institute of International Law at 
Edinburgh, in September, 190-4, the Lord Chancellor set 
forth the position which has met with growing favor. He 
<aid; 



PROTESTS AGAINST RUSSIAN ATTITUDE. 31 

Because two nations go to war they have no right to interrupt and 
interfere with the commerce of the world. They must recognize that 
people who are not engaged in the quarrel have a right to carry on 
their commerce. 

Protests against Russian attitude, 1901^-5. — Protests and 
representations of various degrees of directness were made 
in consequence of Russia's attitude on contraband in the 
Russo-Japanese war of 1904-5. 

The Government of the United States sent the following 

communication : 

Department of State, 
Washington D. C, June 10, 1904- 
To the Ambassadors of the United States in Europe: 

Gentlemen: It appears from public documents that coal, naphtha, 
alcohol, and other fuel have been declared contraband of war by the 
Russian Government. These articles enter into general consumption 
in the arts of peace, to which they are vitally necessary. They are 
usually treated, not as "absolutely contraband of war," like articles 
that are intended primarily for military purposes in time of war, such 
as ordnance, -arms, ammunition, etc., but rather as "conditional con- 
traband," that is to say, articles that may be used for or converted to 
the purposes of war or peace, according to circumstances. They may 
rather be classed with provisions and food stuffs of ordinarily innocent 
use, but which may become absolutely contraband of war when actu- 
ally and especially destined for the military or naval forces of the enemy. 

In the war between the United States and Spain the Xavy Depart- 
ment General Orders, Xo. 492, issued June 20, 1898, declared in article 
19, as follows: 

"The term contraband of war comprehends only articles having a 
belligerent destination." Among articles absolutely contraband it 
declared ordnance, machine guns, and other articles of military or 
naval warfare. It declared as conditional contraband "coal, when 
destined for a naval station, a port of call, or a ship or ships of the 
enemy." It likewise declared provisions to be conditionally contra- 
band "when destined for the enemy's ship or ships, or for a place that 
is besieged." 

The above rules as to articles absolutely or conditionally contraband 
of war were adopted in the naval war code promulgated by the Navy 
Department June 27, 1900. (Withdrawn February 4, 1904.) 

While it appears that the documents mentioned that rice, food stuffs, 
horses, beasts of burden, and other animals which may be used in 
time of war are declared to be contraband of war only when they are 
transported for account of or destined to the enemy, yet all kinds of 
fuel, such as coal, naphtha, alcohol are classified along with arms, 
ammunition, and other articles intended for warfare on land and sea. 



32 CONTRABAND OF WAR. 

The test in determining whether articles ancipitU usus are contra- 
band of war is their destination for military uses of a belligerent. Mr. 

Dana in his notes to Wheaton's International Law, says: 

"The chief circumstance of inquiry would naturally be the port of 
destination. If that is a naval arsenal, or a port in which vessels of 
war are usually fitted out. or in which a fleet is lying, or a garrison 
town, or a place from which military expedition is fitted out, the pre- 
sumption of military use would he raised more or less strongly accord- 
ing to circumstance-." 

In the wars of 1859 and 1S70 coal was declared by France not to he 
contraband. During the latter war Great Britain held that the char- 
acter of coal depended upon its destination and refused to permit ves- 
sels to sail with it to the French fleet in the North Sea. Where coal 
or other fuel is shipped to a port of a belligerent, with no presump- 
tion against its specific use, to condemn it as absolutely contraband 
would seem to be an extreme measure. 

Mr. Hall, International Law, says: 

"During the West African conference in 1884 Russia took occasion 
to dissent vigorously from the inclusion of coal among articles contra- 
band of war, and declared that she would categorically refuse her con- 
sent to any articles in any treaty, convention, or instrument what- 
ever which would imply its recognition as such." 

We are also informed that it is intended to treat raw 7 cotton as a 
contraband of war. While it is true raw cotton could be made into 
clothing for military uses of a belligerent, a military use for the supply 
of the army or garrison might possibly be made of foodstuff of every 
description which might be shipped from neutral ports to the non- 
blockaded ports of a belligerent. The principle under consideration 
might, therefore, be extended so as to apply to every article of human 
use which might be declared contraband of war simply because it 
might ultimately become in any degree useful to a belligerent for 
military purposes. 

Coal or other fuel and cotton are applied for a great many innocent 
purposes. Many nations are dependent on them for the conduct of 
inoffensive industries, and no sufficient presumption of an intended 
warlike use seems to be afforded by the mere fact of their destination 
to a belligerent port. The recognition in principle of the treatment 
of coal and other fuel and raw cotton as absolutely contraband might 
ultimately lead to a total inhibition of the sale by neutrals to the 
people of belligerent States of all articles which could be finally con- 
verted to military uses. Such an extension of the principle, by treat- 
ing coal and all other fuel and raw cotton as absolute contraband of 
war simply because they are shipped by a neutral to a nonblockaded 
port of a belligerent, would not appear to be in accord with the reason- 
able and lawful rights of a neutral commerce. 

I am your obedient servant, Johx Hay. 



VIEWS OF GREAT BRITAIN AND UNITED STATES. 33 

Later in 1904 there was an exchange of views on the 
subject of the declaration of Russia between the Govern- 
ments of Great Britain and the United States. 

Mr. Choate to Lord Lansdowne. 

American Embassy, 
London, June 24, 1904. 

My Lord: Referring to our recent interviews, in which you ex- 
pressed a desire to know the views of my Government as to the order 
issued by the Russian Government on the 28th of February last, 
" making every kind of fuel, such as coal, naphtha, alcohol, and other 
similar materials, unconditionally contraband," I am now able to 
state them as follows: 

These articles enter into great consumption in the arts of peace, to 
which they are vitally necessary. They are usually treated not as 
"absolutely contraband of war," like articles that are intended pri- 
marily for military purposes in time of war, such as ordnance, arms, 
ammunition, etc., but rather as " conditionally contraband;" that is to 
say, articles that may be used for or converted to the purposes of war 
or peace according to circumstances. They may rather be classed 
with provisions and foodstuffs of ordinarily innocent use, but which 
may become absolutely contraband of war when actually and espe- 
cially destined for the military and naval forces of the enemy. * * * 
The recognition in principle of the treatment of coal and other fuel 
and raw cotton as absolutely contraband of war might ultimately lead 
to a total inhibition of the sale by neutrals to the people of belligerent 
states of all articles which could be finally converted to military uses. 
Such an extension of the principle, by treating coal and all other fuel 
and raw cotton as absolutely contraband of war simply because they 
are shipped by a neutral to a nonblockaded port of a belligerent, would 
not appear to be in accord with the reasonable and lawful rights of a 
neutral commerce. 

I shall be glad to receive and transmit to my Government the views 
of His Majesty's Government on the same question as soon as your 
lordship shall have formulated them. 

I have, etc., Joseph H. Choate. 

Lord Lansdowne replied: 

Foreign Office, July 29, 1904. 

Your Excellency: I have the honor to acknowledge the receipt of 
your note of the 24th ultimo, containing the views of the United 
States Government with regard to the Russian regulations of the 28th 
February last, in which every kind of fuel, such as coal, naphtha, 
alcohol, and other similar materials is declared to be absolutely and 
unconditionally contraband of war. 

I have the honor to inform Your Excellency, in reply to your re- 
quest to be furnished with the views of His Majesty's Government on 

16843—06 3 



34 CONTRABAND OF WAR. 

this subject, that the views of the United States Government, as ex- 
pressed in Your Excellency's note, are generally in accord with those 
which have been held and acted upon from time to time by His 
Majesty's Government. With reference, however, to the statement 
made in paragraph 7 as to the attitude of Great Britain in 1870 in re- 
gard to coal, 1 would observe that Her late Majesty's Government re- 
fused in that year to permit vessels to sail with coal to the French 
fleet, not merely because they held that the character of the coal de- 
pended upon its destination, but because they held that steamers en- 
gaged to take out cargoes of coal to the French fleet in the North Sea 
would be in reality acting as storeships to that fleet. 

It is, however, right that I should add that in the altered condi- 
tions of modern maritime warfare and the ever increasing importance 
of the part played therein by coal, His Majesty's Government propose 
to submit the whole question to careful and exhaustive examination 
at an early date, with the question of determining whether and in 
what respects the British rules, as hitherto acted upon, are in need 
of revision. 

In these circumstances His Majesty's Government do not propose 
to make any formal protest at the present stage against the Russian 
declaration in so far as the question of- coal is concerned. They have, 
however, already entered a protest against the treatment of foodstuffs 
as absolutely contraband, and they have pointed out that they ob- 
serve with great concern that rice and provisions will be treated as 
unconditionally contraband, a step which they regard as inconsistent 
with the law and practice of nations. 

In that protest it was stated that His Majesty's Government does not 
contest that in particular circumstances provisions may acquire a con- 
traband character, as, for instance, if they should be consigned direct 
to the army or fleet of a belligerent, or to a port where such fleet may 
be lying, or if facts should exist raising the presumption that they are 
about to be employed in victualing the fleet or forces of the enemy. 
In such cases it is not denied that the other belligerent would be enti- 
tled to seize the provisions as contraband of war, on the ground that 
they would afford material assistance toward the carrying on of war- 
like operations. 

They could not, however, admit that if such provisions were con- 
signed to the port of a belligerent (even though it should be a port of 
naval equipment) they must, on that ground alone, be of necessity 
regarded as contraband of war. 

In the view of His Majesty's Government the test appeared to be 
whether there are circumstances relating to any particular cargo to 
show that it is destined for military or naval use. 

His Majesty's Government further pointed out that the decision of 
the prize court of the captor in such matters, in order to be binding on 
neutral states, must be in accordance with recognized rules and prin- 
ciples of international law and procedure. 

They therefore felt themselves b >und to reserve their rights by pro- 



SECRETARY HAY ON RUSSIAN POSITION. 35 

testing at once against the doctrine that it is for the belligerent to 
decide that certain articles or classes of articles are, as a matter of 
course and without reference to the considerations above referred to, to 
be dealt with as contraband of war regardless of the well-established 
rights of neutrals; nor would they consider themselves bound to rec- 
ognize as valid the decision of any prize court which violated these 
rights, or was otherwise not in comformity with the recognized princi- 
ples of international law. 

I have, etc., Landsdowne. 

The position of Great Britain was also clearly stated in 
a communication to the British representative in Russia: 

It has been held by this country, and our officers have been so 
instructed, that the term ''contraband of war" includes only articles 
having belligerent destination and purpose. Such articles have been 
classed under two heads — 

1. Those that are primarily and ordinarily used for military pur- 
poses in time of war, e. g., arms and munitions of war, military mate- 
rial, etc. ; articles of this kind being usually described as absolutely 
contraband. 

2. Those that may be, and are, used for peaceful or warlike purposes 
according to circumstances; such articles being usually described as 
conditionally contraband. (Marquess of Lansdowne to Sir C. Hard- 
inge, August 10, 1904. Parliamentarv Papers, Russia, No. 1 (1905), 
p. 13.) 

On August 30, 1904, the United States Government 
made known to its ambassador at St. Petersburg its posi- 
tion on certain questions relating to contraband. The 
letter is as follows: 

No. 143.] Department of State, 

Washington, August 30, 1904. 
His Excellency Robert S. McCormick, Etc., 

St. Petersburg. 

Sir: I have the honor to acknowledge the receipt of your No. 176, 
of the 10th instant. 

The Department has carefully considered the note of the Russian 
minister of foreign affairs, dated July 27 last, a copy of which is in- 
closed with your dispatch, with reference to the decision of the prize 
court in the case of the steamship Arabia, containing American cargo, 
seized by the Russian naval forces and sent to Vladivostok for adjudi- 
cation. 

As communicated to you by the minister the decision of the court 
was "that the steamer Arabia was lawfully seized, that the cargo, 
composed of railway material and flour, weighing about 2,360,000 
livres, destined to Japanese ports and addressed to different commer- 
cial houses in said ports, constitutes contraband of war; * * * 



36 CONTRABAND OF WAR. 

that the cargo hound for Japanese ports should be confiscated as being 
lawful prize." 

In communicating the said decision the minister observed, in re- 
sponse to the request of this Government for the release of the non- 
contraband portion of the cargo, that the question could only be 
decided through judicial channels on the basis of a decision of the 
prize court. 

This is the first authentic information which the Department has 
received of the precise grounds on which the prize court decided to 
confiscate the railway material and flour in question. The judgment 
of confiscation appears to be founded on the mere fact that the goods 
in question were bound for Japanese ports and addressed to various 
commercial houses in said ports. In view of its well-known attitude 
it should hardly seem necessary to say that the Government of the 
United States is unable to admit the validity of the judgment, which 
appears to have been rendered in disregard of the settled law of 
nations in respect to what constitutes contraband of war. If the 
judgment and the communication accompanying its transmission are 
to be taken as an expression of the attitude of His Imperial Majesty's 
Government, and as an interpretation of the Russian imperial order of 
February 29 last, it raises a question of momentous import in its bear- 
ing on the rights of neutral commerce. 

The Russian imperial order denounces as absolutely contraband of 
war telegraph, telephone, and railway materials, and fuel of all kinds, 
without regard to the question whether destined for military or for 
purely pacific and industrial uses. 

Clause 5, article 10, of the imperial order denounces as contraband 
of war "all articles destined for war on land or sea, as well as rice, 
provisions, and horses, beasts of burden, and others (autres) capable 
of serving a warlike purpose, and if they are transported on account 
of or to the destination of the enemy." 

The ambiguity of meaning which characterizes the language of this 
clause, lending itself to a double interpretation, left its real intendment 
doubtful. The vagueness of the language, used in so important a 
matter, where a just regard for the rights of neutral commerce required 
that it should be clear and explicit, could not fail to excite inquiry 
among American shippers who, left in doubt as to the significance 
attributed by His Imperial Majesty's Government to the word 
"enemy" — uncertain as to whether it meant "enemy government or 
forces" or "enemy ports or territory" — have been compelled to refuse 
the shipment of goods of any character to Japanese ports. The very 
obscurity of the terms used seemed to contain a destructive anenace, 
even to legitimate American commerce. 

In the interpretation of clause 10 of article 5, and having regard to 
the traditional attitude of His Imperial Majesty's Government, as well 
as to the established rule of international law, with respect to goods 
which a belligerent may or may not treat as contraband of war, it 
seemed to the Government of the United States incredible that the 



SECRETARY HAY ON RUSSIAN POSITION. 37 

word "autres" or the word "l'ennemi" could be intended to include, 
as contraband of war, food stuffs, fuel, cotton, and all "other" arti- 
cles destined to Japanese ports, irrespective of the question whether 
they were intended for the support of a noncombatant population or 
for the use of the military or naval forces. In its circular of June 10 
last, communicated by you to the Russian Government, the Depart- 
ment interpreted the word "enemy" in a mitigated sense, as well as 
in accordance with the enlightened and humane principles of interna- 
tional law, and therefore it treated the word "enemy," as used in the 
context, as meaning "enemy Government or forces" and not the 
"enemy ports or territory." 

But if a benign interpretation was placed on the language used, it is 
because such an interpretation was due to the Russian Government, 
between whom and the United States a most valued and unbroken 
friendship has always existed, and it was no less due to the commerce 
of the latter, inasmuch as the broad interpretation of the language 
used w T ould imply a total inhibition of legitimate commerce between 
Japan and the United States, which it would be impossible for the 
latter to acquiesce in. 

Whatever doubt could exist as to the meaning of the imperial or- 
der has been apparently removed by the inclosure in your dispatch 
of the note from Count Lamsdorff, stating tersely and simply the sen- 
tence of the prize court. The communication of the decision was 
made in unqualified terms, and the Department is therefore con- 
strained to take notice of the principle on which the condemnation is 
based and which it is impossible for the United States to accept, as 
indicating either a principle of law or a policy which a belligerent 
State may lawfully enforce or pursue toward the United States as a 
neutral. 

With respect to articles and material for telegraphic and telephonic 
installations, unnecessary hardship is imposed by treating them all 
as contraband of war, even those articles which are evidently and 
unquestionably intended for merely domestic or industrial uses. 
With respect to railway materials, the judgment of the court appears 
to proceed in plain violation of the terms of the imperial order, ac- 
cording to which they are to be deemed to be contraband of war only 
if intended for the construction of railways. The United States Gov- 
ernment regrets that it could not concede that telegraphic, telephonic, 
and railway materials are confiscable simply because destined to the 
open commercial ports of a belligerent. 

When war exists between powerful States it is vital to the legitimate 
maritime commerce of neutral States that there be no relaxation of 
the rule — no deviation from the criterion — for determining what con- 
stitutes contraband of war lawfully subject to belligerent capture, 
namely, warlike nature, use, and destination. Articles which, like 
arms and ammunition, are by their nature of self-evident warlike use 
are contraband of war if destined to enemy territory; but articles 
which, like coal, cotton, and provisions, though of ordinarily innocent, 



38 CONTRABAND OF WAR. 

are capable of warlike use, are not subject to capture and confiscation 
unless shown by evidence to be actually destined for the military or 
naval forces of a belligerent. 

This substantive principle of the law of nations can not be over- 
ridden by a technical rule of the prize court that the owners of the 
captured cargo must prove that no part of it may eventually come to 
the hands of the enemy forces. The proof is of an impossible nature, 
and it can not be admitted that the absence of proof, in its nature 
impossible to make, can justify the seizure and condemnation. If it 
were otherwise all neutral commerce with the people of a belligerent 
State would be impossible; the innocent would suffer inevitable con- 
demnation with the guilty. 

The established principle of discrimination between contraband and 
noncontraband goods admits of no relaxation or refinement. It must 
be either inflexibly adhered to or abandoned by all nations. There is 
and can be no middle ground. The criterion of warlike usefulness 
and destination has been adopted by the common consent of civilized 
nations after centuries of struggle in which each belligerent made 
indiscriminate warfare upon all commerce of all neutral States with 
the people of the other belligerent, and which led to reprisals as the 
mildest available remedy. 

If the principle which appears to have been declared by the 
Vladivostok prize court and which has not so far been disavowed or 
explained by His Imperial Majesty's Government is acquiesced in, it 
means, if carried unto full execution, the complete destruction of all 
neutral commerce with the noncombatant population of Japan; it 
obviates the necessity of blockades; it renders meaningless the prin- 
ciple of the Declaration of Paris set forth in the imperial order of 
February 29 last that a blockade in order to be obligatory must be 
effective; it obliterates all distinction between commerce in contra- 
band and noncontraband goods, and is in effect a declaration of war 
against commerce of every description between the people of a 
neutral and those of a belligerent State. 

You will express to Count Lamsdorff the deep regret and grave 
concern with which the Government of the United States has received 
his unqualified communication of the decision of the prize court; you 
will make earnest protest against it and say that the Government of 
the United States regrets its complete inability to recognize the 
principle of that decision and still less to acquiesce in it as a policy. 

I have the honor to be, sir, your obedient servant, 

John Hay. 

The American ambassador on September 21 sent the 
following reply: 

No. 186.] American Embassy, 

St. Petersburg, September «, 1904. 
Sir: I have the honor to confirm my cablegram of the 19th with 
reference to the attitude of the Russian Government on the subject of 
contraband of war and to transmit to you a copy of a memorandum 



RUSSIA AND CONDITIONAL CONTRABAND. 39 

handed me by Count Lamsdorff practically reiterating what he had 
said to me on former occasions with reference to any discussion of the 
facts or of the principle involved in the seizure and condemnation by 
the prize court at Vladivostok of that part of the cargoes of these two 
ships which were consigned to merchants in open Japanese ports. 

Count Lamsdorff was not prepared to take any issue with me on the 
declarations and principles contained in your circular note (circular 
of June 10, 1904, printed ante) and your instructions No. 143, of 
August 30 (printed ante), a copy of the former having been handed 
to him, and the contents of the latter having been transmitted to him 
practically in extenso as well as the contents of your instruction on 
the subject of the seizure of the cargo of the Arabia. 

Count Lamsdorff said, in addition to what I have already trans- 
mitted to you by cable, that to unconditionally accept as noncontra- 
band all merchandise not universally accepted or described in their 
own rules as such would open the door to contractors in Japan to 
import food stuffs and other merchandise without limit for account of 
the Japanese Government; that is, on account of or in destination of 
the enemy. That the Russian Government could not but consider as 
contraband a cargo of flour consigned to a port at which was quar- 
tered a large body of troops, and that, extending this principle, the 
ultimate destination of the cargo had to be taken into consideration, 
although its direct consignment might be to a merchant in an open 
port. 

This statement, with a copy of the aide-memoire which is herewith 
inclosed, will enable you to understand the position of the Russian 
Government at this time. 

My only reply was that it meant, practically, abrogation of the 
principle "that the blockade, in order to be obligatory, must be 
effective," and relieved Russia of the necessity of maintaining one. 
To this he replied that nobody would be so naive as to consign mer- 
chandise not prima facie contraband, although intended for the 
enemy, to the destination of the enemy, substituting therefor a mid- 
dleman in the shape of a merchant in the open port. He added 
here, as he repeated several times, that we would see that in the future 
there would be less ground for complaint and that it was far from the 
desire of the Russian Government to place any obstacles in the way 
of legitimate commerce with Japan, but that they would be com- 
pelled to take such steps as would be necessary to prevent supplies of 
any character ultimately intended for the use of the enemy from 
reaching their destination. He added that the several notes I had 
written on the subject, as well as your circular note of June 10, had 
been handed to Professor Martens, who would consider the repre- 
sentations made therein when the cases of the Arabia and Calchas 
came before the admiralty court of St. Petersburg. 

The Russian Government admitted that provisions might 
be regarded as conditionally contraband. 



40 CONTRABAND OF WAR. 

The British Government expressed its approval and 
commented on the matter. 

sir C. Hardingeto Count Lamsdorff. 

St. Petersburg, September 28 [October 11) } 1904. 

M. le Comte: I duly reported to His Majesty's Government that 
Your Excellency had informed me that the Russian Government have, 
in consequence of the decision of the Commission appointed by Imperial 
( )rder under the Presidency of Professor Martens, to study the question 
of contraband of war, issued supplementary instructions to Naval Com- 
manders and Naval Prize courts, denning the interpretation of section 
10 of Article 6 of the Regulations of the 27th February last. According 
to the supplementary instructions, the conditionally contraband nature 
of rice and provisions, used for peaceful or warlike purposes according 
to circumstances, is admitted by the Russian Government. 

I am now instructed by the Marquess of Lansdowne to inform Your 
Excellency that His Majesty's Government desire to acknowledge the 
friendly spirit in which their representations in this matter have been 
met by the Russian Government. They learn with satisfaction that it 
is not intended to treat rice and provisions as unconditionally contra- 
band of war, and they trust that Your Excellency's an tieipation ( which 
I mentioned to Lord Lansdowne), that the decision arrived at will 
tend to avoid difficulties in the future, may be realized. 

His Majesty's Government note that, in the view of the Russian 
Government, such articles are not necessarily free from seizure and 
condemnation as contraband of war merely because they are addressed 
to private tirms or individuals in the enemy's country, the Russian 
Government holding that they may, nevertheless, be in reality 
intended for the military or naval forces of the enemy. 

While His Majesty's Government do not contend that the mere 
fact that the consignee is a private person should necessarily give 
immunity from capture, they hold, on the other hand, that to take 
vessels for adjudication merely because their destination is the enemy's 
country would be vexatious and constitute an unwarrantable inter- 
ference with neutral commerce. To render a vessel liable to such 
treatment there should, in the opinion of His Majesty's Government, 
be circumstances giving rise to a reasonable suspicion that the provi- 
sions are for the enemy's forces, and it is in such a case for the captor 
to show that the grounds of suspicion are adequate and to establish 
the fact of destination for the enemy's forces before attempting to 
procure their condemnation. 

In bringing these views to Your Excellency's notice I am to state 
that, for the reasons mentioned. His Majesty's Government trust that 
the instructions now issued will be interpreted in a liberal and consid- 
erate spirit by the Naval Commanders and the Prize Courts to whom 
they are addressed. 

I am to add, at the same time, that His Majesty's Government can 
not refrain from expressing their regret that the same principle has, 



RUSSIAN INTERPRETATION OF RULES. 41 

so far, not been admitted in the case of certain other commodities 
enumerated in the Regulations issued in February last — such, for 
example, as coal and raw cotton, which clearly appear to be suscepti- 
ble of use for other than warlike purposes. They cherish, however, 
the hope that the views which His Majesty's Government have already 
expressed on this subject may receive favorable consideration at the 
hands of the Russian Government and that the principle of condi- 
tional contraband, which has been admitted by the Russian Govern- 
ment, may receive still further extension in its application. 

I avail, etc., 

(Signed) Charles Hardinge. 

( Parliamentary Papers, Russia, No. 1 (1905), p. 26.) 

In consequence of the questions and protests, interpre- 
tations and modifications of the rules were made. 

In the Jour a <il de Saint Petersbourg of September 30, 
1904, the following appeared: 

In consequence of doubts which have arisen as to the interpretation 
of article 6, section 10, of the regulations respecting contraband of war, 
it has been resolved, as we are in a position to announce, that the 
articles in regard to which no decision has been taken shall be con- 
sidered as contraband of war if they are destined for: 

The government of the belligerent powers; 

Their administrations; 

Their army; or 

Their purveyors. 

In cases where they are addressed to private individuals these arti- 
cles shall not be considered as contraband of war. 

Vessels shall only be confiscated in cases where prohibited mer- 
chandise forms more than half of the cargo. 

In the contrary case only the cargo shall be confiscated. All pos- 
sible measures have thus been taken to insure freedom of commerce 
to neutral powers. 

It is to be hoped that the Powers will appreciate the considerable 
latitude which is at present allowed to the free movement of their 
commerce and will not give occasion to reproach them with abuses 
relative to the Regulations on Contraband of War. (Parliamentary 
Papers, Russia, No. 1 (1905), p. 23.) 

The Russian rules relating to conditional contraband 
received further consideration by the British Government. 
The following letter indicates the position taken: 

Sir C. Hardinge to Count Lainsdorff. 

St. Petersburg, October 9, 1904- 
M. le Comte: On the 16th August I had the honour to communicate 
to Your Excellency the substance of a despatch which I had received 
from the Marquess of Lansdowne, in which the views of His Majesty's 



42 CONTRABAND OF WAR. 

Government were very clearly expressed on the subject of the treat- 
ment by the Russian Government as unconditional contraband of an 
extensive category of articles enumerated under sections 8 and 10 of 
Rule 6 of the Regulations published by the Russian Government on the 
14th February of this year. In this statement of the views of His 
Majesty's Government, Lord Lansdowne explained the grounds upon 
which it was impossible to admit the claims of the Russian Govern- 
ment, and he defined the measures which His Majesty's Government 
would be reluctantly compelled to take in the event of the interests 
of British subjects suffering by the application of these rules. 

It was with much satisfaction that 1 received on the 16th ultimo a 
verbal communication from Your Excellency to the effect that the 
principle of conditional contraband was admitted by the Russian Gov- 
ernment, and that all the articles mentioned in paragraph 10 of article 
6 of the Rules of the 14th February, 1904, with the exception of horses 
and beasts of burden, had been recognized as articles of a condition- 
ally contraband nature. 

I have since had the honor to point out to Your Excellency that 
the principle of conditional contraband having been admitted by the 
Russian Government, the application of this principle could not be 
logically withheld from coal, which, though essentially contraband 
when used for warlike objects, has a much wider use for peaceful pur- 
poses, and being a commodity of primary necessity for heating, cook- 
ing, and manufactures, enjoys when so employed a perfectly innocent 
character. 

In reply to my representation, Your Excellency has been so good as 
to inform me that the conclusions of the Ministry for Foreign Affairs 
upon the question of principle raised by me have been communicatt d 
to the Ministry of Marine for their consideration, and I can only hope 
that a solution of this question may be arrived at in accordance with 
international usage, and that the instructions already issued to Naval 
Commanders and Prize Courts may be extended so as to include as 
conditionally contraband all articles of dual use when not destined 
for the belligerent forces of the enemy. 

The new doctrine, which is in complete contradiction to the law and 
practice of nations sanctioned by international usage, and which is 
entirely contrary to the former views of the Russian Government, 
viz, that coal and fuel of every kind are contraband, irrespective of 
their destination, and that the seizure of cargoes, or the vessels con- 
taining them, upon the ground that they included such articles is 
justifiable in international law, is one which it is impossible for His 
Majesty's Government to admit. It has been suggested to me by 
Your Excellency that in view of the fact that Russian war ships pro- 
ceeding to the Far East are not allowed to purchase coal in British 
ports it could hardly be claimed that British merchant vessels should 
have the right to carry coal to the ports of the enemy, even if it is not 
destined for warlike purposes. The reply to this suggestion is obvious. 
An article of. commerce may be so essential for hostile purposes that 



BRITISH DISCUSSION. 43 

no war ship should be supplied with it in neutral waters, and yet so 
essential for the ordinary purposes of civil life that it should not be 
prevented from reaching the peaceful inhabitants of belligerent coun- 
tries. The dual character of coal, as contraband of war, forms a very 
apt illustration of the above. 

There is another aspect of this question to which I would invite 
Your Excellency's attention. From the enormous quantities of coal 
which arrive daily in Russia from Great Britain, for both peaceful and 
warlike purposes, it is evident that the British trade in coal is of very 
great importance. It is equally certain that the importance of this 
trade is not confined to exports to Russia, and that very large exports 
of coal to Japan, for purposes both of peace and war. take place. 
Your Excellency will, I am confident, admit that the fact of the Gov- 
ernments of Russia and Japan being at war is not in itself a sufficient 
reason why the peaceful commerce between Great Britain and com- 
mercial houses in Japan should be treated with such severity as to 
render commerce both dangerous and even prohibitive. 

So, also, as regards raw cotton, which, by Imperial Order on the 21st 
April, was declared to be absolute contraband of war. Your excel- 
lency may not be aware that British India is by far the largest importer 
of raw cotton into Japan, the quantities imported in 1901 and 1902 
being more than double those imported from the United States of 
America or from any other country, while the value of raw cotton 
sent to Japan from India in each of the above-mentioned years 
amounted to nearly 40,000,000 rubles and one-half of the total value 
of all the cotton imported into Japan. The quantity of raw cotton 
that might be utilized for explosives would be infinitesimal in com- 
parison with the bulk of the cotton exported from India to Japan for 
peaceful purposes, and to treat harmless cargoes of this latter descrip- 
tion as unconditionally contraband would be to subject a branch of 
innocent commerce which is specially important in the Far East to a 
most unwarrantable interference. 

As 1 have already had the honor of explaining to Your Excellency, 
His Majesty's Government have no desire to place obstacles in the way 
of a belligerent desiring to take reasonable precautions in order to pre- 
vent his enemy from receiving supplies, but they can not admit that 
the right of adopting such precautions implies a consequential right to 
abolish by a stroke of the pen the long-established distinction between 
articles which are conditionally and those which are absolutely con- 
traband of war, and to intercept at a distance from the scene of opera- 
tions and without proof of their ultimate destination a numerous 
category of articles in themselves of an innocent description and 
largely dealt in by neutral Powers, but which that belligerent may 
have announced his intention of regarding as unconditional contra- 
band of war. 

The principle of conditional contraband has already been recognized 
by the Russian Government, and it only remains to extend its appli- 
cation to coal, cotton, and other articles which may be used for peace- 



44 CONTRABAND OF WAR. 

ful or warlike purposes according to circumstances. Such a measure 
would be consistent with the law and practice of nations and with the 
well-established rights of neutrals. While maintaining the rights of 
a belligerent, the rights of neutrals would he respected, and the source 
of a serious and unprofitable controversy would he removed. 

In making these representations to Your Excellency in accordance 
with the instructions which I have received from the Marquess of Lans- 
downe, I am convinced that you will give this matter the very serious 
consideration which is its due, and I trust that Your Excellency will 
be in a position to inform me shortly that a solution has been arrived 
at which may prove satisfactory to both Governments. 
I avail, etc., 

Charles Hakdinge. 

(Parliamentary Papers, Russia, Xo. 1 (1905), p. 24.) 

In reply to the British ambassador's request the follow- 
ing interpretation was given by Russia: 

In consequence of doubts which have arisen as to the interpretation 
of Article*), section 10, of the Regulations respecting Contraband of 
War, it has heen resolved by the Imperial Government that the arti- 
cles capable of serving for a warlike object, and not specified in sec- 
tions 1 to 9 of Article 6, as well as rice and food stuffs, shall be consid- 
ered as contraband of war, if they are destined for — 

The Government of the belligerent Power; 

For its administration; 

For its army; 

For its navy; 

For its fortresses; 

For its naval ports; or 

For its purveyors. 

In cases where they are addressed to private individuals these arti- 
cles shall not be considered as contraband of war. 

In all castas horses and beasts of burden shall be considered as con- 
traband of war. (Parliamentary Papers, Russia, No. 1 (1905), p. 27.) 

In interpreting a contract entered into just before the 
Russo-Japanese war and involving the definition of contra- 
band, the following statement was made by Chief Justice 
Berkley : 

The contract was made in Hongkong, and therefore in the absence 
of evidence to the contrary which I could act upon the parties must 
he taken to have used the expression "contraband of war" in the 
sense in which it is understood in British courts of law, which is its 
sense in international law. It can not he successfully contended that 
provisions would be regarded by British courts of law as unconditional 
contrahand of war, or that there is any likelihood that they will ever 
take that view. Had this court heen asked'at any time hetween the 



COURT OPINION ON RUSSIAN DECLARATION. 45 

signing of the charter party on the 10th of February, 1904, and the issu- 
ing of the Russian declaration to construe the meaning of the words 
"contraband of war" it can not be doubted that it would have ex- 
cluded provisions from the category of unconditional contraband. It 
is contended, however, that the court ought to place a different mean- 
ing on that expression, after, and in view of, the terms of the Russian 
declaration, inasmuch as Russia, being a sovereign independent Power, 
has a prerogative right to declare whatever she pleases to be contra- 
band of war in any war in which she may be engaged, and that the 
effect of the Russian declaration may be to make provisions uncondi- 
tionally contraband, the master of the ship Prometheus was excused 
from loading them on his ship. In this contention I am unable to 
concur. In the view which I take of the effect of the Declaration under 
Treaty of Paris of 1856, and of the agreement undertaken by the sev- 
eral powers signatory thereto given in the Protocol Xo. 24 not to 
depart from the principles enunciated in the Declaration, I think that 
Russia was not at liberty to declare provisions unconditional contra- 
band of war, and that her declaration in that respect could not affect 
the contract between the parties to this charter party, even supposing 
it could be held that contraband of war means, as used in the charter 
party, whatever Russia may consider as such, for Russia, having been 
a party to the solemn declaration of "fixed principles" under the 
Treaty of Paris, was not at liberty to disregard those principles and 
was therefore bound to recognize and act upon the generally accepted 
rule of international law that provisions are not unconditional contra- 
band. (The Osaka Shown Kaisha v. The Prometheus.) 

It is evident that no unvarying list of articles contra- 
band of war can be made. The progress of invention may 
make an article previously entirely innocent exceedingly 
dangerous to the belligerent if he allows it to be freely 
transported. The question always is, How essential is the 
article for carrying on the war? If it is essential, it may 
be declared contraband, e. g., in many wars sulphur and 
saltpeter have led the list of contraband because essential 
in the making of gunpowder and not readiW obtained in all 
places. Charcoal, on the other hand, while essential, is 
readily obtainable and not classed as contraband. 

The change in the method of warfare has made treat- 
ment of coal a matter of much moment. France did not 
regard coal as contraband in 1859 or in 1870, and other 
States took the same position. It may, however, easily 
become contraband by destination under the regulations of 
these States. 

Certain coals, such as the Cardiff and Pocahontas, which 



46 CONTRABAND OF WAR. 

are peculiarly adapted for use on war vessels, will natu- 
rally be more liable to be treated as contraband than ordi- 
nary domestic coals. 

G. G. Phillimore has recently said of the position of 
Russia in the Russo-Japanese war: 

The Russian attitude with regard to coal is in direct conflict with 
her declaration of 1884, at the West African Conference, that she 
would never recognize coal as contraband. While no doubt a State 
may define contraband differently on different occasions, to suit the 
particular circumstances of the warfare it is engaged in, it can not 
expect other States to acquiesce in its refusal to recognize the general 
rules governing the subject which it has formerly accepted and which 
stand on a basis of general acceptance in practice. (30 The Law 
Magazine and Review, p. 79.) 

The Russian prize court at Vladivostok in 1904 con- 
demned flour and railway materials consigned to merchants 
at Japanese ports on board the German vessel Arabia, and 
took similar action in regard to the British steamer Cal- 
chas. The goods on these vessels were consigned by 
United States merchants. 

Secretaiy Hay protested against the seizure and con- 
demnation, saying that — 

In view of its well-known attitude it should hardly seem necessary 
to say that the Government of the United States is unable to admit 
the validity of the judgment which appears to have been rendered in 
disregard of the settled law of nations in respect to what constitutes 
contraband of war. (Note August 30, 1904, Foreign Relations, p. 760. ) 

Two days earlier the British Government had stated 
that proof is necessary ,c that the goods are intended for 
the belligerent's naval or military forces before they can 
be considered as contraband." 

The appeal in the case of the decision on the steamer 
( 'ulcluis was taken to the High Admiralty Court at St. 
Petersburg. That court handed down its decision on June 
13, 1905. The decision does not directl\ T recognize the cat- 
egory of conditional contraband; but, in justifying the seiz- 
ure of the cotton and timber, maintains by an extended ar- 
gument that there was fair evidence that the cotton was 
destined for the arsenal at Kobe, and that the timber 
was destined for Japanese military railways and telegraph, 



CONCLUSIONS ON CONTRABAND. 47 

thus introducing" the principle of destination for enemy 
military use as a ground of condemnation. 

In the recent report of the British Royal Commission on 
Supply of Food and Raw Material in Time of War is enun- 
ciated the following opinion formulated by Professor 
Holland: 

Provisions in neutral ships may be intercepted by a belligerent as 
contraband only when, being suitable for the purpose, they are on 
their way to a port of naval or military equipment belonging to the 
enemy, or occupied by the enemy's naval or military forces, or to the 
enemy's ships at sea, or when they are destined for the relief of a port 
besieged by such belligerent, (p. 24, sec. 101. ) 

Conclusion. — The position taken in the above extended 
discussions showing recent opinions as well as early deci- 
sions recognize the categories of absolute and conditional 
contraband and regard destination as the factor determin- 
ing the innocent or belligerent character of certain goods. 
The recognition of such principles seems reasonable as 
regards belligerents and neutrals. 

The following regulations in regard to contraband are 
therefore proposed: 

CONTRABAND. 

1. Absolute contraband. — AVhen within or destined for the territory 
within the enemy's jurisdiction or for his military or naval use, the 
following articles are absolute contraband: 

(a) Military materials, such as weapons, ammunition, etc. 
(6) Instruments solely for use in warlike purposes, as machinery 
for the manufacture of military materials. 

(c) Any other articles intended solely for use in war. 

2. Conditional contraband. — When destined for the enemy's military 
or naval use, the following articles are contraband : Means of subsist- 
ence, fuel, means and material for transportation and communication 
on land or sea, money and other articles, such as cement, cotton, 
lumber, etc., of use either for warlike or for peaceful purposes. 



Topic IN. 

(a) If the United States and Denmark were at war, and 
Great Britain neutral, would war vessels of Denmark be 
justified in visiting and searehing British or other neutral 
vessels in the Red Sea \ 

(h) Should the right of visit and search be limited to a 
certain area in the neighborhood of the seat of war? 

CONCLUSION. 

(a) Denmark would be justified in visiting and, for good 
reason, in searching neutral vessels outside of neutral jur- 
isdiction in the Red Sea. 

(h) The area of the exercise of the right of visit and 
search should not be limited, but greater restrictions ma} T 
justly be demanded against its exercise in ;m arbitrary and 
burdensome manner. 

DISCUSSION AND NOTES. 

Restriction of visit and search, — (a) If the United States 
and Denmark were at war, and Great Britain neutral, would 
war vessels of Denmark be justified in visiting and search- 
ing British or other neutral vessels in the Red Sea? 

In the case of the Maria, in 1799, Sir William Scott 
states the general principle as follows: 

That the right of visiting and searching merchant ships upon the 
high seas, whatever be the ships, whatever be the cargoes, whatever 
be the destinations, is an incontestible right of the lawfully commis- 
sioned cruisers of a belligerent nation. (I. C. Robinson's Admirality 
Reports, 340. ) 

The action of Russia in visiting and searching neutral 
vessels in the Red Sea during the Russo-Japanese war of 
1904-5 gave rise to much discussion. Frequently it was 
urged that the right of visit and search be abandoned 
altogether b} T belligerents as a right causing too great 

48 



RESTRICTION" OF VISIT AND SEARCH. 49 

inconvenience to neutrals and too seriously disorganizing 
commerce now of such vital importance to the world. 
Some maintain that the captured contraband would be 
"so trifling in quantity as to have no possible effect on 
the result of the war " or that the same ends could be 
served by less burdensome means than by visit and search. 
Various other objections also have been made. 

The restriction of the right of search was positively 
advocated by Secretary Marcy, who said: 

It is not inappropriate to remark that a due regard to the fair claims 
of neutrals would seem to require some modification, if not an aban- 
donment, of the doctrine in relation to contraband trade. Nations 
which preserve the relations of peace should not be injuriously 
affected in their commercial intercourse by those which choose to 
involve themselves in war, provided the citizens of such peaceful na- 
tions do not compromise their character as neutrals by a direct inter- 
ference with the military operations of the belligerents. The laws of 
siege and blockade, it is believed, afford all the remedies against neu- 
trals that the parties to the war can justly claim. Those laws inter- 
dict all trade with the besieged or blockaded places. A further inter- 
ference with the ordinary pursuits of neutrals, in nowise to blame for 
an existing state of hostilities, is contrary to the obvious dictates of 
justice. If this view of the subject could be adopted and practically 
observed by all civilized nations, the right of search, which has been 
the source of so much annoyance and of so many injuries to neutral 
commerce, would be restricted to such cases only as justified a suspi- 
cion of an attempt to trade with places actually in a state of siege or 
blockade. 

Humanity and justice demand that the calamities incident to war 
should be strictly limited to the belligerents themselves and to those 
who voluntarily take part with them; but neutrals abstaining in good 
faith from such complicity ought to be left to pursue their ordinary 
trade with either belligerent, without restriction in respect to the arti- 
cles entering into it. 

Though the United States do not propose to embarrass the other 
pending negotiations relative to the rights of neutrals by pressing this 
change in the law of contraband, they will be ready to give it their 
sanction whenever there is a prospect of its favorable reception by 
other maritime powers. (Senate Ex. Doc, 34th Cong., 1st sess., No. 
104, p. 13.) 

Admiral Reveillere has recently said: 

Le droit de fouiller les neutres est absolument incompatible avec les 
besoins de circulation des neutres. Le droit de visite est un dernier 
vestige dee temps de petite industrie. (Journal des Economistes, 
Sept., 1904, p. 395.) 

10843—06 4 



50 VISIT AND SEARCH. 

It ma} T be pointed out that the inconvenience of the exer- 
cise of the right of visit and search of an innocent vessel 
should be of very little moment if the right is properly 
exercised. Further, the innocent neutral would properly 
have claim for damages in case visit and search is not 
properly conducted. 

The f Japanese regulations relating to capture at sea, of 
March 7, 1904, make specific provisions for the protection 
of neutrals: 

Art. LI. In visiting or searching a vessel the captain of the man-of- 
war shall take care not to divert her from her original course more than 
necessary, and as far as possible not to give her inconvenience. 

Art. 62. The boarding officer, before he leaves the vessel, shall ask 
the master whether he has any complaint regarding the procedure of 
visiting or searching or any other points; and if the master makes any 
complaints he shall request him to produce them in writing. 

The claim that visit and search disorganizes commerce 
has probably received more weight than the facts in a 
properly conducted Avar would justify. A properly con- 
ducted visit and search of an innocent neutral vessel would 
certainly interfere very little with commerce. Articles 
which are absolutely contraband of war form a very small 
portion of an ordinary cargo. The disorganization conse- 
quent on the checking of such shipments would accord- 
ingly be small. The main interruption of commerce is 
in the line of articles which ma}' be classed as conditional 
contraband. These articles, such as foodstuffs, fuel, etc., 
form a large part of ordinar} T trade, but the present posi- 
tion is that such articles are liable to seizure only when 
destined for the military use of the enemy. In transport- 
ing such articles for such purpose the neutral is aware of 
his risk and assumes it in the hope of greater gain and 
usually pays a corresponding rate of insurance. It is true 
that war interferes with commerce in conditional contra- 
band, and that commerce in the same goods to the same 
ports might in time of peace be very large. War does 
cause inconvenience to neutrals and may cause loss of 
trade. The denial of the right of a belligerent, except by 
blockade, to prevent supplies from reaching his opponent's 
forces because such supplies are sailing to his opponent 



NECESSITY OF VISIT AND SEARCH. 51 

under a neutral flag would certainly be one of the most 
effective means of prolonging a war. Humanity demands 
that wars shall be as short as possible. A neutral's desire 
for the profits of commerce should not be put before the 
claims of humanity. The rights of neutrals should, how- 
ever, be carefully protected in the exercise of visit and 
search and seizure and legitimate commerce should receive 
the most liberal treatment. 

The argument that the contraband is u so trifling in 
quantity as to have no possible effect on the result of the 
war," can not weigh against the practical consideration 
that the ""quantity " is not necessarily a matter of so great 
importance in military operations as is the timeliness of a 
particular article in meeting a need. It ma} T happen that 
a little more ammunition, coal, food, or supplies of some 
kind may turn defeat into victory. A little more ammu- 
nition may enable a belligerent to hold out till reenforce- 
ments arrive; a little more coal may enable a vessel to 
pursue and capture an enemy ; a telegraphic outfit may 
make possible communications which determine the issue 
of the war. Though quantity may be trifling, and small 
quantities are the rule in some articles, this amount may 
be no less vital for the successful prosecution of the war. 

The right of visit and search is not merely a right exer- 
cised to determine the presence of contraband or guilt in 
regard to blockade, but is still more essential in order that 
the belligerent may be convinced as to the nature and 
character of the vessel. The belligerent has a right to 
learn for himself whether the vessel fl} T ing a neutral flag 
really is a properly documented neutral vessel. 

In general, as the neutral is supposed to refrain from 
all participation in the war, he can not complain if the 
belligerents take reasonable precautions to prevent par- 
ticipation. 

A careful consideration of the grounds of objection to 
the exercise of the right of visit and search seems to show 
that the objection is rather to the method than to the visit 
and search itself. To objections to the method full weight 
should be given. Improper methods and careless exercise 



52 VISIT AND SEAKCH. 

of this supervision of neutral commerce is of no advantage 
to the belligerent and may work great disadvantage to the 
neutral. Nothing can be said in support of an act that 
brings only injury to the neutral and no benefit to the 
belligerent, but in some cases the direct disadvantage of 
making payment for the improper act. Recent court 
decisions have shown that prize courts are inclined to 
regard reasonable neutral rights even against actions of 
their own commanders. 

The right of visit and search is now generally admitted, 
and visit is not now considered an offense by a neutral, 
provided the visit is properly conducted. Up to the sev 
enteenth century the exercise of this right was often re- 
garded as in derogation of the dignity of the sovereignty 
of the neutral vessel visited. For a time the exercise of 
the right of search was permitted under treaty provisions. 
Later it was regarded as generally admitted, and treaty 
provisions merely prescribe the method of exercise of the 
right. (Treaty United States and Italy, 1871.) 

Sir William Scott, in the case of the Maria in L799(l C. 
Robinson's Admiralty Reports, 340), speaking of the law 
of nations applying to visit, search, and capture, says: 

I state a few principles of that system of law which I take to be in- 
controvertible. 

1. That the right of visiting and searching merchant ships upon the 
high seas, whatever be the ships, whatever be the cargoes, whatever 
be the destinations, is an incontestible right of the lawfully commis- 
sioned cruisers of a belligerent nation. I say, be the ships, the car- 
goes, and the destinations what they may, because till they are visited 
and searched it does not appear what the ships, or the cargoes, or the 
destinations are, and it is for the purpose of ascertaining these points 
that the necessity of this right of visitation and search exists. This 
right is so clear in principle that no man can deny it who admits the 
legality of maritime capture, because if you are not at liberty to ascer- 
tain by sufficient inquiry whether there is property that can' be legally 
captured it is impossible to capture. 

Judge Story asserts the acceptance of Lord Stowell's 
position by the United States, affirming that visit and 
search "is allowed by the general consent of nations in 
the time of war and limited to those occasions." (The 
Marianna Flora, 11 Wheaton, U. S. Reports, 1.) 



METHOD OF VISIT AND SEARCH. 53 

Method and scope of visit and search. — The general 
object of the exercise of this right is to secure from the 
neutral observance of neutralit} 7 . The method is pre- 
scribed in the rules governing" naval operations. 

The general position is that the right can be exercised — 

1. B} r the properly commissioned vessels. 

2. Over neutral private vessels. 

3. On the high seas and at other points outside neutral 
jurisdiction. 

The British Regulations are as follows: (Manual of 
Naval Prize Law, Holland, Chaps. I and II.) 

Chapter I. 

POWERS. 

1. The powers with which the Commander of one of Her Majesty's 
cruisers is invested for the purpose of making Lawful Prize in time of 
war are those of — 

Visit. 

Search. 

Detention (with a view to Adjudication). 

IN WHAT AVATERS EXERCISABLE. 

2. These powers may be exercised in any Waters except the Terri- 
torial Waters of a Neutral State. The Territorial Waters of a State are 
those within .three miles from low-water mark of any part of the Ter- 
ritory of that State, or forming bays within such Territory, at any 
rate in the case of bays the entrance to which is not more than six 
miles wide. 

3. These powers may not be exercised over a vessel in Neutral Ter- 
ritorial Waters, although she may have been beyond those limits when 
first descried or chased. 

4. The Commander may not use Neutral Territorial Waters as an 
habitual War Station, whence to sally out with his Ship or Boats and 
exercise the powers of Visit, Search, or Detention upon vessels lying 
beyond the limits of such Waters. a But he may pass over Neutral 
Territorial Waters in order to effect a Capture beyond, provided they 
are not Waters which can not usually be passed through without 
express permission. 

5. Sometimes it happens that, after capturing a Vessel, the Com- 
mander ascertains that the Capture was made in Neutral Territorial 
Waters. In such case he should release her, if an express application 
is made by the Authorities of the Neutral Territory for her restoration. 

«Twee Gebroeders, 3 C. Rob., 162. 



54 VISIT AND SEARCH. 



OVER WHAT SHIPS EXERCISABLE. 



6. These powers may be exercised over any Private Vessel, whatever 
may be her Nationality, but not over any Ship belonging to the 
Public Navy of a friendly Power. 

7. No Vessel is exempt from the exercise of these powers on the 
ground that she is under the Convoy of a Neutral Public Ship. 



REASONS FOR EXERCISING. 

8. The power of Visit should be exercised only over Vessels which 
the Commander of Her Majesty's Cruiser has some reason to believe 
are liable to Detention, either as being the property of Enemies or as 
being engaged in a prohibited trade or service. 

9. The Vessels thus liable to Detention are (subject to the explana- 
tions and exceptions contained in Chapters III-XI). 

I. Any Enemy Vessel, irrespectively of her destination or cargo. 
(See Chapter III.) 

II. Any British Vessel, or Vessel of an Ally, trading with, or acting 
in the service of, the Enemy. (See Chapter IV. ) 

III. Any Neutral Vessel engaged in — 

(1) Carriage of Contraband. (See Chapter VI. ) 

(2) Acting in the service of the Enemy. (See Chapter VII.) 

(3) Breach of Blockade. (See Chapter VIII.) 

Except in these three cases, to which, under certain circumstances, 
others (see Chapters IX-XI) may possibly be added by special 
instructions, Neutral Vessels are free to trade with the enemy. 

10. Any Vessel is also liable to Detention, irrespectively of her 
national character or the trade in which she is engaged, for — 

(1) Resistance to Visit or Search. (See Chapter XIII») 

(2) Sailing under Neutral Convoy which resists. (Ibid.) 

(3) Sailing under Enemy Convoy. (Ibid.) 

(4) Deficiency in Ship Papers. (See Chapter XIV.) 

PROCEDCRE TO BE OBSERVED IN EXERCISING. 

11. Visit, Search, and Detention must be exercised in accordance 
with the established course of Procedure. (See Chapters XV-XIX. ) 

SENDING IN FOR ADJUDICATION. 

12. When a Vessel has been detained she should be sent, with the 
accustomed precautions, to a Port of Adjudication; and upon her 
arrival there proceedings should be commenced with a view to her 
being duly condemned by a Prize Court. (See Chapters XX-XXII. ) 

Chapter II. 

RESPONSIBILITY FOR EXERCISE OF POWERS. 

13. In the exercise of the powers of Visit, Search, and Detention, 
great discretion will be required. The war has to be prosecuted with 
zeal, but at the same time care must be taken not to subject to any 



BRITISH REGULATIONS ON SEARCH. 55 

vexatious interference the commerce of Great Britain or her Allies, or 
of any other nation not engaged in the war. 

14. The Commander should be careful on all occasions to observe 
strict propriety of conduct toward the masters and Crews of Vessels 
with whom, in the exercise of these powers, he may be brought into 
contact, and should impress the same duty upon the Officers and men 
under his command. 

15. If a Commander in the exercise of these powers detain a Vessel 
without probable cause, or do an act not sanctioned by international 
law or otherwise unwarrantable, he will incur the displeasure of Her 
Majesty's Government, and will also be personally liable for damages. 

16. The Commander is likewise responsible in damages for the acts 
of all under his command, whether he himself is present or absent ; 
and this responsibility is not shifted upon his Superior Officer (as the 
Commander of the Squadron or of the Fleet), unless such Superior 
Officer be actually present and cooperating, or has issued express orders 
for the doing of the act in question. 

17. Even although the Vessel and Cargo be condemned as Lawful 
Prize, the Captors may be deprived by the Prize Court of all interest in 
the same, if in relation to the Vessel or her Cargo, or any person on 
board, they have committed any offense against the Law of Nations, or 
against the Naval Prize Act, 1864, or against any Act relating to Naval 
Discipline, or against any order in Council or Royal Proclamation, or 
any breach of Her Majesty's Instructions relating to Prize, or any act 
of Disobedience to the Orders of the Lords of the Admiralty, or to the 
Command of a Superior Officer. & 

Great Britain found in 1900, during the South African 
war, that visit and search exercised without greatest dis- 
cretion might be very annoying to the belligerent as well 
as for the neutral, and the admiralty drafted the following 
instruction : 

Owing to the extreme difficulty of proving, at ports so distant from 
South Africa as Aden and Perim, the real destination of contraband of 
war carried by ships calling at or passing those ports, the Senior Naval 
Officer, Aden, is to be directed to discontinue searching such vessels, 
confining himself to reporting to the Commander in chief, Cape, the 
names and dates of clearance of suspected ships. 

Chapter V of the Japanese regulations relating to Cap- 
ture at Sea gives a late statement of the "grounds for visit, 
search, and seizure." Its provisions are as follows: 

Art. XXXII. Any private vessel regarding which there is suspicion 
which would justify her capture shall be visited and searched, no 
matter of what national character she is. 

a Mentor, 1 C. Rob., 179; Eleanor, 2 Wheat., 345. 
ft Naval prize act, 1864, sec. 'A7. 



56 VISIT AND SEARCH. 

Art. XXXIII. A neutral vessel under convoy of a war vessel of her 
country shall not be visited nor searched if the commanding officer of 
the convoying war vessel presents a declaration signed by himself, 
stating that there is on board the vessel no person, document, or goods 
that are contraband of war, and that all the ship's papers are perfect, 
and stating also the last port which the vessel left and her destination. 
In case of grave suspicion, however, this rule does not apply. 

Art. XXXIV. In visiting or searching a neutral mail ship, if the 
mail officer of the neutral country on board the ship swears, in a writ- 
ten document, that there are no contraband papers in certain mail 
bags, those mail bags shall not be searched. In case of grave suspicion, 
however, this rule does not apply. 

Art. XXXV. All enemy vessels shall be captured. Vessels belong- 
ing to one of the following categories, however, shall be exempted 
from capture if it is clear that they are employed solely for the indus- 
try or undertaking for which they are intended: 

1. Vessels employed for coast fishery. 

2. Vessels making voyage for scientific, philanthropic, or religious 
purposes. 

3. Light-house vessels and tenders. 

4. Vessels employed for exchange of prisoners. 

Art. XXXVI. Any vessel of the Empire which carries on com- 
merce with the enemy State or its subjects, or makes voyage with such 
intention, shall be captured, unless such vessel has no knowledge of 
the outbreak of war or has permission from the Imperial Government. 

Art. XXXVII. Any vessel that comes under one of the following 
categories shall be captured, no matter of what national character it is: 

1. Vessels that carry persons, papers, or goods that are contraband 
of war. 

2. Vessels that carry no ship's papers, or have willfully mutilated 
or thrown them away, or hidden them, or that produce false papers. 

3. Vessels that have violated a blockade. 

4. Vessels that are deemed to have been fitted out for the enemy's 
military service. 

5. Vessels that engage in scouting or carry information in the interest 
of the enemy, or are deemed clearly guilty of any other act to assist 
the enemy. 

6. Vessels that oppose visitation or search. 

7. Vessels voyaging under the convoy of an enemy's man of war. 
Art. XXXVIII. Vessels carrying contraband persons, } tapers, or 

goods, but which do not know the outbreak of war, shall be exempt 
from capture. 

The fact that the master of a vessel does not know the persons, 
papers, or goods on board to be contraband of war, or that he took 
them on board under compulsion, shall not exempt the vessel from 
capture. 

Art. XXXIX. Vessels that come under one of the following cases 
may be captured, no matter of what national character they are: 



TREATY PROVISIONS. 57 

1. When a vessel does not produce the necessary papers or they are 
not kept in good order. 

2. When there are contradictions among the ship's papers or between 
the statements of the master and the ship's papers. 

3. Besides the above cases when, as the result of visitation or search, 
there is sufficient suspicion to justify capture according to Articles from 
XXXV to XXXVII. 

In the treaty between the United States and Italy of 
February 26, 1871, there is provision for the regulation 
of visit and search. 

Article XVIII. In order to prevent all kinds of disorder in the 
visiting and examination of the ships and cargoes of both the contract- 
ing parties on the high seas, they have agreed mutually that whenever 
a vessel of war shall meet with a vessel not of war of the other con- 
tracting party the first shall remain at a convenient distance and may 
send its boat with two or three men only in order to execute the said 
examination of the papers concerning the ownership and cargo of the 
vessel without causing the least extortion, violence, or ill treatment, 
and it is expressly agreed that the unarmed party shall in no case be 
required to go on board the examining vessel for the purpose of exhib- 
iting his papers, or for any other purpose whatever. 

Article XIX. It is agreed that the stipulations contained in the 
present treaty relative to the visiting and examining of a vessel shall 
apply only to those which sail without a convoy; and when said ves- 
sels shall be under convoy the verbal declaration of the commander 
of the convoy, on his word of honor, that the vessels under his protec- 
tion belong to the nation whose flag he carries, and, when bound to 
an enemy's port, that they have no contraband goods on board shall 
be sufficient. (Compilation of Treaties in Force, p. 455.) 

The principles were well set forth by Count von Billow 
in a speech in the Reichstag on January 19, 1900. He 
said: 

We recognize the rights which the law of nations actually concedes 
to belligerents with regard to neutral vessels and neutral trade and 
traffic. We do not ignore the duties imposed by a state of war upon 
the shipowners, merchants, and vessels of a neutral State, but we re- 
quire of the belligerents that they shall not extend the powers they 
possess in this respect beyond the strict necessities of the war. We 
demand of the belligerents that they shall respect the inalienable 
rights of legitimate neutral commerce, and we require above all things 
that the right of search and of the eventual capture of neutral ships 
and goods shall be exercised by the belligerents in a manner conforma- 
ble to the maintenance of neutral commerce, and of the relations of 
neutrality existing between friendly and civilized nations." (Parlia- 
mentary Papers, Africa, No. 1 (1900), p. 25.) 



58 VISIT AND SEARCH, 

Some recent opinions of the United States Court of 
Claims set forth the nature of the right: 

The right of visitation and search of neutral vessels at sea is a bel- 
ligerent right, essential to the exercise of the right of capturing enemy's 
property, contraband of war, and vessels committing a breach of block- 
ade. It is essential, in order to determine whether the ships them- 
selves are neutral and documented as such, according to the law of 
nations and treaties, even if the right of capturing enemy's property 
be ever so strictly limited. (The Jane, 37 U. S. Court of Claims, 24, 
Dec. 2, 1901.) 

In the case of the Nancy it was stated that — 

The right of search is preliminary to the right of seizure, and the 
right of seizure depends upon the result of the exercise of the right of 
search. * * * even though there may be a legal seizure, it is the 
duty of the seizing vessel to follow such legal seizure by affording to 
the captured party all facilities of defense to which he may be enti- 
tled. (The Nancy, 37 U. S. Court of Claims, 401.) 

In the case of the Jane mentioned above it is also fur- 
ther stated that — 

The object of searching ostensible neutrals is to get evidence as to 
the fact of neutrality, and if the cargo be not enemy's property; or if 
neutral, whether they are carrying contrabrand; or whether the ves- 
sels are in the service of the enemy in the way of carrying military 
persons or dispatches or sailing in prosecution of an intent to break 
blockade. 

A case showing an evident intent to go beyond the reg- 
ular rules in regard to visit, and search, and seizure oc- 
curred during the Russo-Japanese war of 1904-5. This 
was the case of the 'Allanton. 

Mr. Lawrence states the case of the Allanton as follows: 

On January 5 of the present year (1904) the Allanton, a British vessel 
registered at Glasgow, and owned by Mr. W. R. Rea, of Belfast, was 
chartered to take a cargo of Cardiff coal to Hongkong or Sasebo. On 
February 21 she left Cardiff. At Gibraltar the captain received orders 
by telegraph on February 24 to go round the Cape instead of through 
the Suez Canal. On May 10 he reached Hongkong and there found 
instructions to proceed to Sasebo. Having discharged his cargo in the 
latter port he went to Muroran, in the island of Hokkaido, where the 
ship was chartered by a Japanese company to carry a fresh cargo of 
coal to Singapore. It was consigned to the British firm of Paterson, 
Simons & Co., and was a part of a large quantity of 50,000 tons which 
they had agreed to take during the present year. The Allanton left 
Muroran on June 13, and three days later was captured by a Russian 
squadron near the Okishima Islands. A prize crew was put on board 
her and she was taken to Vladivostok, where she arrived on June 19. 



CASE OF THE ALLANTON. 59 

After two days, and before the case was decided by the local prize 
court, the authorities commenced to discharge her cargo, a proceeding 
suggestive of a determination to find or make grounds for condemning 
her. Whether this suspicion be just or not, as a matter of fact she 
was condemned. The judgment of the court was given on June 24, 
and four days after an appeal was lodged against it. ( War and Neu- 
trality in the Far East, 2d ed., p. 222.) 

The decision of the Russian prize court at Vladivostok 
condemned the Allanton because (1) the vessel had brought 
contraband to a Japanese port on its outward journey, 
(2) various insignificant circumstances "and the charac- 
ter of the cargo (coal) convinces the court that the real 
destination of this hostile cargo was by no means Singa- 
pore, but a Japanese or Korean port, or even the enemy's 
fleet maneuvering in the sea," and (3) the cargo was enemy 
property. 

It may be said that the general principle of international 
law is to the effect (1) that the offense of carriage of con- 
traband is deposited with the goods, (2) that there must be 
ample evidence rather than suspicion of intent as to hos- 
tile destination, and (3) that enemy's goods, even though 
contraband when bound for enemy destination, are not 
such when under a neutral flag bona fide bound for a neu- 
tral destination. 

The Vladivostok decision in regard to the Allanton was 
contested and an appeal was taken to the Admiralty council 
at St. Petersburg. On October 22, 1904, the decision of 
the prize court at Vladivostok was annulled b}^ the Admir- 
alty council and ship and cargo were ordered released. 

Limitations on visit and search. — It does not seem to be 
questioned that one limitation should be placed on visita- 
tion and search in general, viz: that issued by the United 
States in 1898: 

The voyages of mail steamers are not to be interfered with except 
on the clearest grounds of suspicion of a violation of law in respect of 
contraband or blockade. 

To the above, article 34 of the Japanese regulations cor- 
responds. a Doubtless it would be well to add to the United 
States rule a clause which excepts vessels guilty of un- 
neutral service. 

«See p. 56. 



60 VISIT AND SEARCH. 

It may also be said that pending the decision of a prize 
court the captured vessel's cargo should remain, so far as 
possible, in the same condition as at the time of capture. 

Conclusion. — It may be safely said that at points outside 
of neutral jurisdiction in the Red Sea the right of visit and 
search may be exercised. It is, however, a right of war. 
Operations should be directed against the enemy, only. 
Therefore the exercise of the right of visitation and 
search should be exercised in such a manner as to interfere 
so little as possible with legitimate commerce of neutrals. 
If the papers are regular, only grave reasons would justify 
the breaking of the cargo and search of a great liner on 
its regular voyage, as this would be of great inconvenience 
and possible loss to neutral commerce. It is suggested 
that a system of neutral government inspection and guar- 
antee be introduced to guard against the inconveniences 
of such interference. 

The right of visitation and search is general^ admitted. 
The question of its exercise in a given case, however, must 
often be one of policy. 

Area of permissible vis if and search. — (h) Should the 
right of visit and search be limited to a certain area in the 
neighborhood of the seat of war? 

While the right of visit and search is generally recog- 
nized, there may arise a question as to the place of its ex- 
ercise. There are certain restrictions well established in 
limitation of the method of search. In considering the 
question of place it is supposed that there is no question 
as to the propriety of the method. 

Propositions have been made to the effect that the area 
of the field of possible exercise of the right of search 
should be circumscribed; that visit and search of neutral 
vessels should be permitted only within a certain distance 
of the -seat of war or within a certain distance of the bel- 
ligerent territory. It has been proposed to limit the ex- 
ercise of the right of search to the area within the radius 
of 100 miles from the belligerent ports. Any attempt at 
limitation of area would seem to be action which would 
introduce new complications into the conduct of maritime 
warfare. 



CONCLUSIONS ON VISIT AND SEARCH. 61 

The difficult}' of determining disputes in regard to dis- 
tance would make such a restriction hard to enforce. The 
courts would not care to have such additional complica- 
tions introduced into questions upon which they must 
decide. 

The 1<)0 mile radius would create a quasi blockaded area 
in which neutrals would be liable to the exercise of ex- 
tended belligerent rights. 

It would introduce new practices which would bear very 
heavily on neutral states, neighbors to belligerent states. 
It might easily happen and would often be the case that 
this limitation of area of the exercise of the right of search 
would bring about a restriction on the commerce to a 
given part of the neutral country which chanced to be 
within the area of search, or practically close by discrimi- 
nation a neutral port. 

It would work general hardship upon the neighboring 
neutral which would be unnecessary and would bring no 
commensurate advantage to the belligerent. 

This limitation would restrict belligerent operations to a 
narrower field, which might in some respects be advan- 
tageous. Yet, visitation and search properly exercised 
may be but little onerous to the neutral. The limitation 
of area of visit and search would be very burdensome to 
the belligerent. There seems to be in general no reason 
for such limitation which in practice would introduce new 
difficulties in enforcement. 

Conclusion as to limitation of area. — All the advantages 
of the proposed limitation of area may better be obtained 
through the more judicious exercise of the right and the 
more careful attention by neutrals to the proper document- 
ing of their vessels. 

General conclusions. — (a) Denmark would be justified in 
visiting and for good reason in searching neutral vessels 
outside of neutral jurisdiction in the Red Sea. 

(b) The area of the exercise of the right of visit and 
search should not be limited, but greater restrictions may 
justly be demanded against its exercise in an arbitrary and 
burdensome manner. 



Topic IV. 

Should the destruction of captured vessels be allowed 
before adjudication by a prize court? If so, under what 
condition? 

CONCLUSION. 

Enemy vessels. — If there are controlling reasons why 
eneni3 T vessels may not be sent in for adjudication, as 
unseaworthiness, the existence of infectious disease, or the 
lack of a prize crew, they may be appraised and sold, and 
if this can not be done may be destroyed. The imminent 
danger of recapture would justify destruction, if there 
was no doubt that the vessel was good prize. But in all 
such cases all the papers and other testimony should be 
sent to the prize court, in order that a decree may be duly 
entered. 

Neutral vessels. — If a seized neutral vessel can not for 
any reason be brought into port for adjudication, it should 
be dismissed. 

DISCUSSION AND NOTES. 

Tiro kinds of prize. — Prize may be of two kinds — 

(1) Enem} r property, or 

(2) Neutral property. 

The destruction of enemy property is a matter quite 
different from the destruction of neutral property. The 
destruction of an enemy vessel may involve the destruc- 
tion of neutral property, and at the present time com- 
paratively few cargoes belong wholl} T to citizens of a single 
state. 

Cases involving the destruction of captures. — During the 
Revolutionary war captured vessels were regularly de- 
stroyed. During the war of 1812, also, it was the general 
practice to destroy captured enemy vessels; indeed, the 

62 



EARLY OPINIONS. 63 

officers were instructed that unless their prizes were "very 
valuable and near a friendly port, it will be imprudent and 
worse than useless to attempt to send them in." The Con- 
federate cruisers habitually destroyed captures during the 
civil war of 1861. The ground of destruction was asserted 
to be the impossibility of taking these prizes to home 
ports for adjudication. The burning of the German ves- 
sels Ludwig and the Vorwarts by a French cruiser October 
21, 1871, was upheld b} r the French courts. 

The cases most frequently cited are those of the Acteon, 
in 1815 (2 Dodson's Admiralty Reports, p. 48), and the 
Felicity, in 1819 (ibid., p. 381). In both these instances 
the vessels were property of subjects of one of the bellig- 
erent states. They were sailing under license of the other 
belligerent. In the case of the Felicity the belligerent 
which had granted the license destro} T ed the vessel holding 
the license. The Felicity, which was destroyed, was a 
merchant ship of the United States sailing under a British 
license and destroyed by a British war vessel, but the 
license was not produced till the Felicity was already on fire. 

Of this case Lord Stowell said: 

Taking this vessel and cargo to be merely American the owners 
could have no right to complain of this act of hostility, for their 
property was liable to it in the character it bore at that period of 
enemy's property. There was no doubt that the Endymion had a full 
right to inflict it, if any grave call of public service required it. 
Regularly a captor is bound by the law of his own country, conform- 
ing to the general law of nations, to bring in for adjudication in order 
that it may be ascertained whether it be enemy's property; and that 
mistakes may not be committed by captors, in the eager pursuit of 
gain, by which injustice may be done to neutral subjects and national 
quarrels produced with the foreign states to which they belong. 
Here is a clear American vessel and cargo, alleged by the claimants 
themselves to be such, and consequently the property of enemies at 
that time. They share no inconvenience by not being brought in for 
the condemnation, which must have followed if it were mere Ameri- 
can property; and the captors fully justify themselves to the law of 
their own country, which prescribes the bringing in, by showing that 
the immediate service in which they were engaged — that of watching 
the enemy's ship of war — the President, with intent to encounter her, 
though of inferior force, would not permit them to part with any of 
their own crew to carry her into a British port. Under this collision 
of duties nothing was left but to destroy her, for they could not, con- 



64 DESTRUCTION OF CAPTURED VESSELS. 

sistently with their general duty to their own country or, indeed, its 
express injunctions, permit enemy's property to sail away unmolested. 
If impossible to bring in their next duty is to destroy enemy's prop- 
erty. Where doubtful whether enemy's property and impossible to 
bring in, no such obligation arises, and the safe and proper course is to 
dismiss. Where it is neutral the act of destruction can not be justified 
to the neutral owner by the gravest importance of such an act to the 
public service of the captor's own state: to the neutral it can only In- 
justified, under any such circumstances, by a full restitution in value. 
These are rules so clear in principle and established in practice that 
they require neither reasoning nor precedent to illustrate or support 
them. 

Before the time of Sir William Scott it had been gener- 
ally regarded as legitimate and as doing the neutral no 
injustice to destroy his captured property, provided full 
remuneration was paid. Lord Stowell's later decisions 
seem to incline far more toward absolute prohibition of 
destruction of neutral vessels. 

In the case of the Dos Hewnanos, in L825, Mr. Chief 
Justice Marshall delivered the opinion of the court, that- 
whatever might have been the ancient doctrine in England in respect 
to capture in war, it is now clearly established in that kingdom that 
all captures jure belli are made for the Government, and that no title 
of prize can be acquired but by the public acts of the Government 
conferring rights on the captors. (10 Wheaton's U. S. Supreme Court 
Reports, 306. ) 

In the case of the Leucade, in 1855, Dr. Lushington 

stated: 

The general rule, therefore, is that if a ship under neutral colors be 
not brought to a competent court for adjudication the claimants are, 
as against the captor, entitled to costs and damages. Indeed, if the 
captpr doubt his power to bring a neutral vessel to adjudication it is 
his duty to release her. 

R, <jiil<tti<>nx in regard to destruction hefort adjudica- 
tion. — In the British Manual of Naval Prize Law, edited 
b} r Professor Holland in 1888, it is provided — 

303. In either of the following cases: 

(1) If the Surveying Officers report the Vessel not to be in a condi- 
tion to be sent in to any port for Adjudication; or 

(2) If the Commander is unable to spare a Prize Crew to navigate 
the Vessel to a Port of Adjudication the Commander should release 
the Vessel and Cargo without ransom, unless there is clear proof that 
she belongs to the Enemy. 

304. But jf in either of these cases there be clear proof that the 



BRITISH AND JAPANESE REGULATIONS. 65 

Vessel belongs to the Enemy, the Commander should remove her Crew 
and papers, and, if possible, her Cargo, and then destroy the Vessel. 
The Crew and the Cargo (if saved) should then be forwarded to a 
proper Port of Adjudication, in charge of a Prize Officer, together 
with the Vessel's Papers and the necessary Affidavits. Among the 
Affidavits should be one, to be made by the Prize Officer, exhibiting 
the evidence that the Vessel belonged to the Enemy, and the facts 
which rendered it impracticable to send her in for Adjudication (p. 86). 

In an address on April 12, 1905, Professor Holland 

refers to this rule of the Admiralty Manual of 1888. He 

says: 

While it is, on principle, most undesirable that neutral property 
should be exposed to destruction without inquiry, cases may occasion- 
ally occur in which a belligerent could hardly be expected to permit 
the escape of such property, though he is unable to send it in for 
adjudication. The contrary opinion is, I venture to think, largely 
derived from a reliance upon detached paragraphs in one of Lord 
Stowell's judgments on the subject — judgments which, taken to- 
gether, show little more than that, in his view, no plea of national 
interest will bar the claim of a neutral owner to be fully compensated 
for the value of his property when it has been destroyed without 
judicial proof of its noxious character. "Where doubtful whether 
enemy's property, and impossible to bring in, the safe and proper 
course," says Lord Stowell, "is to dismiss." The Admiralty Manual 
of 1888 accordingly directs commanders who are unable to send in 
their prizes to "release the vessel and cargo without ransom, unless 
there is clear proof that she belongs to the enemy." This indulgence 
can hardly, however, be proclaimed as an established rule of interna- 
tional law, in the face of the fact that the sinking of neutral prizes is 
under certain circumstances permitted by the prize codes, not only of 
Russia, but also as of such powers as France, the United States, and 
Japan (1904). (83 Fortnightly Review, 802.) 

The Japanese regulations in the Chino- Japanese war of 
1894 provide in article 22 that — 

If the enemy's vessels are unfit to be sent to a port, as stated in 
Article 18, the commander should break up the vessels, after taking 
the crew, the ship's papers, and the cargo, if possible, into his ship. 
The crew, the ship's papers, and the cargo should be sent to a port, 
as stated in Article 18. (Takahashi, International Law During the 
Chino-Japanese War, p. 183. ) 

The Japanese regulations of March 7, 1904, are general 

in character. Article XCI provides: 

In the following cases, and when it is unavoidable, the captain of 
the man-of-war may destroy a captured vessel, or dispose of her ac- 

16843—06 5 



66 DESTRUCTION OF CAPTURED VESSELS. 

cording to the exigency of the occasion. But before so destroying or 
disposing of her he shall transship all persons on board and, as far as 
possible, the cargo also, and shall preserve the ship's papers and all 
other documents required for judicial examination: 

1. When the captured vessel is in very bad condition and can not 
be navigated on account of the heavy sea. 

2. When there is apprehension that the vessel may be recaptured 
by the enemy. 

3. When the man-of-war can not man the prize without so reducing 
her own complement as to endanger her safety. 

The United States instructions to blockading vessels and 

cruisers in 1898 does not specifically restrict destruction 

to enemy vessels. In article 28 is the provision that — . 

If there are controlling reasons why vessels may not be sent in for 
adjudication, as unseaworthiness, the existence of infectious disea>c 
or the lack of a prize crew, they may be appraised and sold; and if 
this can not be done they may be destroyed. The imminent danger 
of recapture would justify destruction if there was no doubt that the 
vessel was good prize. But in all such cases all the papers and other 
testimony should be sent to the prize court, in order that a decree 
may be duly entered. (General Order 492, June 20, 1898.) 

According to the treat} T stipulations between the United 
States and Italy of February 26, 1871, it would not be a 
light matter for a United States commander to destroy an 
Italian vessel. Article XX provides: 

In order effectually to provide for the security of the citizens and 
subjects of the contracting parties, it is agreed between them that all 
commanders of ships of war of each party, respectively, shall be 
strictly enjoined to forbear from doing any damage to, or committing 
any outrage against, the citizens or subjects of the other or against 
their vessels or property; and if the said commanders shall act con- 
trary to this stipulation they shall be severely punished and made 
answerable in their persons and estates for the satisfaction and repa- 
ration of said damages of whatever nature they may be. (Compila- 
tion of Treaties in Force, p. 455. ) 

The Russian rules in regard to maritime prizes, of March 
27, 1895. approved by the admiralty board September 20, 
1900, allow the destruction of captured vessels under cer- 
tain circumstances. 

Art. 21. Dans les cas extraordinaires ou la conservation du batiment 
capture sera reconnue impossible par suite du mauvais etat dans lequel 
il se trouve, de son peu de valeur, du danger qu'il court d'etre repris 
par l'ennemi, du fait que les ports sont trop eloignes ou bloques, qu'il 
constitue an embarras pour le batiment capteur ou un obstacle au 



RUSSIAN REGULATIONS. 67 

succes de ses operations, le commandant est autorise, sous sa responsa- 
bilite personnelle, a bruler ou a couler sa capture, apres avoir trans- 
horde les hommes et autant que possible le chargement et avoir pris 
les mesures voulues pour conserver les papiers et objets qui se trouvent 
a bord et qui pourraient etre necessaires pour eclairer 1' affaire lors 
qu'elle sera examinee conformement a la procedure des prises. Le 
commandant dresse, d'apres l'article 21 du code maritime, proces- 
verbal des circonstances qui ont motive la destruction du batiment 
capture. 

Article 40 of the Russian instructions of 1901 provides 

that — 

In the following and other similar extraordinary cases the com- 
mander of the imperial cruiser has the right to burn or sink a detained 
vessel after having previously taken therefrom the crew, and, as far 
as possible, all or part of the cargo thereon, as well as all documents 
and objects that may be essential in elucidating the matter in the 
prize court: 

(1) When it is impossible to preserve the detained vessel on account 
of its bad condition. 

(2) When the danger is imminent that the vessel will be recap- 
tured by the enemy. 

(3^ When the detained vessel is of extremely little value, and its 
conduct into port requires too much waste of time and coal. 

(4) When the conducting of the vessel into port appears difficult 
owing to the remoteness of the port or a blockade thereof. 

(5) When the conducting of the detained vessel might interfere 
with the success of the naval war operations of the imperial cruiser 
or threaten it with danger. 

The commander prepares a memorandum under his sig- 
nature and that of all the officers concerning the circum- 
stances which have led him to destroy the detained vessel, 
which memorandum he transmits to the authorities at the 
earliest possible moment. 

Note. — Although Article 21 of the Regulations on Maritime Prizes 
of 1895 permits a detained vessel to be burned or sunk "on the per- 
sonal responsibility of the commander," nevertheless the latter by no 
means assumes such responsibility when the detained vessel is actually 
subject to confiscation as a prize, and the extraordinary circumstances 
in which the imperial vessel finds itself absolutely demand the destruc- 
tion of the detained vessel. ( U. S. Foreign Relations, 1904, p. 752. ) 

Russian instructions of August 5, 1905, were to the 
effect that — 

Russian vessels were not to sink neutral merchantmen with contra- 
band on board in the future, except in case of direst necessity, but in 
cases of emergency to send prizes into neutral ports. 



68 DESTKUCTION OF CAPTURED VESSELS. 

The Institute of International Law at Turin in 1882 pro- 
vided for the destruction of an enemy's vessel — 

(1) If unseaworthy. 

(2) If unable to accompany the fleet. 

(3) If there is danger from a superior force of the 
enemy. 

(4) If the captor can not without danger spare a prize 
crew, and 

(5) If the port to which the vessel should be conducted 
is too remote. (Annuaire 1883, p. 221.) 

From these discussions it seems to be evident that the 
destruction of an enemy vessel is permitted under certain 
restrictions. 

Neutral restriction of entrance of prize. — The hospi- 
tality once accorded to prize has gradually lessened. For- 
merly prizes were admitted to neutral ports, but in recent 
years neutrality proclamations have often forbidden the 
privilege. The British proclamation of 1898 says: 

Armed ships of either belligerent are interdicted from carrying 
prizes made by them into the ports, harbors, roadsteads, or waters of 
the United Kingdom, the Isle of Man, the Channel Islands, or any of 
Her Majesty's colonies or possessions abroad. 

An identical position was taken on February 10, 1904, 
in consequence of the Russo-Japanese war. 

The regulations for the Netherlands Indies during the 
Russo-Japanese war of 1904-5 provide that — 

Warships or privateers shall not be admitted to the harbors or out- 
lets of the Netherlands when accompanied by prizes, except in the 
case of distress or want of provisions. As soon as the reason for their 
entry is passed they shall leave immediately. They shall not ship 
more provisions than is necessary for them to reach the nearest har- 
bor of the country to which they belong, or that of one of their allies 
in the war. So long as they keep their prizes coal shall not be sup- 
plied them. When warships pursued by the enemy shall seek shelter 
in Netherlands Indies waterways, they shall abandon their prizes. 

The Danish proclamation of neutralit} T of February 10, 
1904, reads: 

Prizes must not be brought into a Danish harbor or roadstead 
except in evident case of stress, nor must prizes be condemned or sold 
therein. 



NEUTRAL PORTS CLOSED TO PRIZE. 69 

The French proclamations of neutrality in the Spanish- 
American war in 1898 and in the Russo-Japanese war in 
1904 were identical in providing: 

The Government decides in addition that no ship of war of either 
Delligerent will be permitted to enter and to remain with her prizes 
in the harbors and anchorages of France, its colonies and protectorates, 
for more than twenty-four hours, except in the case of forced delay or 
justifiable necessity. 

This general tendency to prohibit the entrance of prizes 
into neutral ports makes the disposition of prizes taken 
at a distance from the home country a serious question. 
The difficulty of bringing the prizes in for adjudication 
would often be so great as to make capture useless. If 
the belligerent must generally bring captures before the 
prize court, the very burden of this bringing in the captured 
vessels would tend to lessen the frequency of such cap- 
tures. There would be at the same time a greater incen- 
tive toward the destruction of vessels which it might be 
advantageous to the belligerent to destroy, for such ves- 
sels being denied entrance to neutral ports, and being- 
remote from a home port, must be destroyed or released. 

Opinions in regard to destruction of captured vessels. — 
Sir Robert Phillimore says: 

If a neutral ship be destroyed by a captor, either wantonly or under 
alleged necessity, in which she herself was not directly involved, the 
captor, or his government, is responsible for the spoliation. The 
gravest importance of such an act to the public service of the captor's 
own state will not justify its commission. The neutral is entitled to 
full restitution in value. (International Law, III, CCXXXIIL) 

Walker makes the general statement that — 

In certain cases, as where the captor can not with safety to himself 
spare a sufficient number of men to man the captured prize, or where 
the prize is too much injured to make an extended voyage, captured 
property may be disposed of before adjudication, or even destroyed, 
but a captor so acting without reasonable justification renders himself 
liable in respect of neutral property improperly dealt with, and will 
in all likelihood, on subsequent proceedings in a prize court, be heavily 
mulcted in damages and costs. Destruction was, however, freely and 
systematically resorted to by the United States cruisers in the war of 
1812-1814 and by the Confederates in the civil war. And in any case 
it is in the formal revision of the legitimacy of the proceedings of 
the captor and not in the actual handling of the proceeds that consists 



70 DESTRUCTION OF CAPTURED VESSELS. 

the real value of the prize tribunal. So a sentence of condemnation 
may, it has been held, in British courts, be well passed by a compe- 
tent prize court on property taken after capture into and still lying 
within a neutral port, although in general it is the clear duty of the 
captor to bring his prize for adjudication as speedily as possible to a 
port of his own country. 

For a neutral vessel destroyed by a belligerent the neutral proprietor 
has a clear claim to full indemnity from the destroyer; for neutral 
property destroyed with a justifiably destroyed hostile vessel no claim 
can be admitted by the belligerent. (Manual of International Law, 
p. 152.) 

. If the statement in the first clause above means to imply 
that the grounds which would be a ki reasonable justifica- 
tion" for the destruction of a belligerent vessel may be 
a " reasonable justification " for the destruction of a neutral 
vessel, it is not according to the present idea in regard to 
the treatment of neutrals. 
Hall says that — 

Some authorities appear to look upon the destruction of captured 
enemy's vessels as an exceptionally violent exercise of the extreme 
rights of war * * * It is somewhat difficult to see in what the 
harshness consists of destroying property which would not return to 
the original owner if the alternative process of condemnation by a 
prize court were suffered. It has passed from him to the captor, and 
if the latter chooses rather to destroy than to keep what belongs to 
himself, persons who have no proprietary interest in the objects 
destroyed have no right to complain of his behavior. Destruction of 
neutral vessels or of neutral property on board an enemy's vessel 
would be a wholly different matter. (International Law, 5th ed., 
p. 459. ) 

Hall summarizes the relations of the captor to the neu- 
tral prize as follows: 

In the absence of proof that he has rendered himself liable to pen- 
alties, a neutral has the benefit of those presumptions in his favor 
which are afforded by his professed neutrality. His goods are prima 
facie free from liability to seizure and confiscation. If then they are 
seized it is for the captor, before confiscating them or inflicting a pen- 
alty of any kind on the neutral, to show that the acts of the latter 
have been such as to give him a right to do so. Property therefore 
in neutral goods or vessels which are seized by a belligerent does not 
vest upon the completion of a capture. It remains in the neutral 
until judgment of confiscation has been pronounced by the compe- 
tent courts after due legal investigation. The courts before which the 
question is brought whether capture of neutral property has been 



LATE OPINIONS ON DESTRUCTION. 71 

effected for sufficient cause are instituted by the belligerent and sit in 
his territory, but the law which they administer is international law. 

Such being the position of neutral property previously to adjudication, 
and such being the conditions under which adjudication takes place, 
a captor lies under the following duties: * * * 

He must bring in the captured property for adjudication, and must 
use all reasonable speed in doing so. In cases of improper delay, de- 
murrage is given to the claimant, and costs and expenses are refused 
to the captor. It follows as of course from this rule — which itself is a 
necessary consequence of the fact that property in neutral ships and 
goods is not transferred by capture — that a neutral vessel must not be 
destroyed; and the principle that destruction involves compensation 
was laid down in the broadest manner by Lord Stowell; where a ship 
is neutral, he said, "the act of destruction can not be justified to the 
neutral owner by the gravest importance of such an act to the public 
service of the captor's own state; to the neutral it can only be justified 
under any circumstances by a full restitution in value." It is the 
English practice to give costs and damages as well; to destroy a neutral 
ship is a punishable wrong; if it can not be brought in for adjudica- 
tion, it can and ought to be released. If a vessel is not in a condition 
to reach a port where adjudication can take place, but can safely be 
taken into a neutral port, it is permissible to carry her thither, and to 
keep her there if the local authorities consent. In such case the wit- 
nesses, with the ship's papers and the necessary affidavits, are sent in 
charge of an officer to the nearest port of the captor where a prize 
court exists. (International Law, 5th ed., p. 733.) 

A late English opinion is as follows: 

If the prize is a neutral ship, no circumstances will justify her 
destruction before condemnation. The only proper reparation to the 
neutral is to pay him the full value of the property destroyed. (At- 
lay's edition Wheaton's International Law, p. 507, sec. 359e. ) 

In an address before the British Academy, April 12, 
i905 (Proceedings, Vol. Ill, p. 12), Professor Holland sets 
forth the present position in regard to the destruction of 
neutral vessels. He says: 

If ship and cargo belong, beyond question, to the enemy, he may, 
after taking off the crew, sink the ship, the property in which is now 
vested in his own government. 

If, however, the ship or cargo be neutral, the matter is not so sim- 
ple. The neutral government is not bound to acquiesce in the de- 
struction of the possibly innocent property of its subjects, at any rate 
unless some overwhelming necessity can be shown for the course 
which has been adopted; if, indeed, even overwhelming necessity 
would be sufficient to justify it. 



72 DESTRUCTION OF CAPTURED VESSELS. 

The destruction of a neutral ship must be clearly distin- 
guished from the destruction of a belligerent ship even 
under the principles at present generally accepted. If the 
belligerent's vessel is good prize it may be lost to that 
belligerent from the time when his opponent captures it. 
This is not always necessarily the case, because it may be 
recaptured or a court for some reason may not condemn 
the vessel. " Quarter-deck courts" should be avoided, 
except in extreme instances, even in deciding on the 
destruction of enemy vessels. Such vessels may have 
neutral cargo, which may be in no way involved in the 
hostilities. The principle of the Declaration of Paris that 
"neutral goods, with the exception of contraband of war, 
are not liable to capture under enemy's flag," ma} T be 
involved in such manner as to make great caution necessary 
in destroying vessels of the enemy before adjudication. 

Much greater care should be taken before destroying a 
neutral vessel itself. 

Lawrence, writing in 1895, says: 

Meanwhile it is necessary to point out that a broad line of distinc- 
tion must be drawn between the destruction of enemy property and 
the destruction of neutral property. The former has changed owners 
directly the capture is effected, and it matters little to the enemy sub- 
ject who has lost it whether it goes to the bottom of the sea or is 
divided by public authority among those who have deprived him of it. 
But the latter does not belong to the captors till a properly constituted 
court has decided that their seizure of it was good in international law, 
and its owners have a right to insist that an adjudication upon their 
claim shall precede any further dealings with it. If this right of theirs 
is disregarded a claim for satisfaction and indemnity may be put in 
by their government. It is far better for a naval officer to release a 
ship or goods as to which he is doubtful, than to risk personal punish- 
ment and international complications by destroying innocent neutral 
property. Even where what is believed to be enemy property is con- 
cerned, and destruction or release becomes the only possible alterna- 
tive, it would perhaps be wise to adopt the latter unless the hostile 
nationality of the vessel and ownership of the cargo are too clearly 
established to admit of mistake. But the necessity of rapid movement 
in modern naval warfare, combined with the fact that neutral ports 
will in most cases be closed to prizes, is almost certain to result in an 
increase of the practice of destruction unless the nations will consent 
to take a further step forward and prohibit the capture of private 
property unless it be contraband of war. (Principles of International 
Law, p. 406. ) 



DESTRUCTION BRINGS LIABILITIES. 73 

Further it is generally admitted that the destruction of 
neutral property can only be justified to the neutral by 
full restitution of value. The naval officer destroying a 
neutral vessel would thus assume a serious responsibility 
in case the destruction is not justifiable. In case it is not 
warranted there would fall upon the belligerent destroy- 
ing the neutral vessel not merely claim for full restitution 
of value, but also claim for damages. 

The generally enunciated rule in regard to destruction 
of an enemy's vessel is, "an enemy's ship can be destined 
only after her crew has been placed in safety/' If this is 
to be strictly interpreted, there would be considerable 
doubt as to whether the deck of a war vessel, whose com- 
mander fears that his prize is in imminent danger of 
recapture because of the approach of his enemy, would 
be a "place of safety." It is held that the property 
and persons of belligerents are subject to the hazard of 
war when coming within the field of operations. It would 
scarcely follow that such persons should be forced to 
assume such hazards, particularly when it is a matter of 
doubt before adjudication by the court whether the vessel 
is a proper subject for seizure. What is true of the bel- 
ligerent vessel is even more emphatically true of a neutral 
vessel. 

In regard to the destruction of prizes a telegram from 
the Department of State, Washington, August 6, 1904, 
says: 

Replying to Mr. Choate's telegram of the 3d instant, Mr. Hay states 
that, as the Department is not sufficiently advised of all the facts and 
circumstances connected with the sinking of the Knight Commander, 
it is not prepared to express an opinion on the case, nor can it say 
that, in case of imperative necessity, a prize may not be lawfully 
destroyed by a belligerent captor. (Foreign Relations, U. S., 1904, 
p. 3370 

In a communication of Lord Landsdowne to the British 
ambassador at St. Petersburg, August 10, 1904, a protest 
against the destruction of neutral ships is made: 

The position, already sufficiently threatening, is aggravated by the 
assertion on behalf of the Russian Government that the captor of a 
neutral ship is within his rights if he sinks it, merely for the reason 
that it is difficult, or impossible, for him to convey it to a national 



74 DESTRUCTION OF CAPTURED VESSELS. 

port for adjudication by a Prize Court. We understand that this right 
of destroying a prize is claimed in a number of cases; among others, 
when the conveyance of the prize to a prize court is inconvenient be- 
cause of the distance of the port to which the vessel should be brought, 
or when her conveyance to such a port would take too much time or 
entail too great a consumption of coal. It is, we understand, even as- 
serted that such destruction is justifiable when the captor has not at 
his disposal a sufficient number of men from whom to provide a crew 
for the captured vessel. It is unnecessary to point out to Your Excel- 
lency the effects of a consistent application of these principles. They 
would justify the wholesale destruction of neutral ships taken by a 
vessel of war at a distance from her own base upon the ground that 
such prizes had not on board a sufficient amount of coal to carry them 
to a remote foreign port — an amount of coal with which such ships 
would probably in no circumstances have been supplied. They would" 
similarly justify the destruction of every neutral ship taken by a bel- 
ligerent vessel which started on her voyage with a crew sufficient for 
her own requirements only, and therefore unable to furnish prize 
crews for her captures. The adoption of such measures by the Rus- 
sian Government could not fail to occasion a complete paralysis of all 
neutral commerce. 

It appears to His Majesty's Government that no pains should be 
spared by the Russian Government in order to put an end without 
delay to a condition of things so detrimental to the commerce of this 
country, so contrary to acknowledged principles of international law 
and so intolerable to all neutrals. You should explain to the Russian 
Government that His Majesty's Government does not dispute the 
right of a belligerent to take adequate precautions for the purpose of 
preventing contraband of war, in the h-itherto accepted sense of the 
words, from reaching the enemy; but they object to, and can not ac- 
quiesce in, the introduction of a new doctrine under which the well- 
understood distinction between conditional and unconditional contra- 
band is altogether ignored, and under which, moreover, on the 
discovery of articles alleged to be contraband, the ship carrying them 
is, without trial and in spite of her neutrality, subjected to penalties 
which are reluctantly enforced even against an enemy's ship. (Par- 
liamentary Papers, Russia, Xo. 1 (1905), p. 12.) 

Many arguments may be urged against the destruction 
of neutral vessels. Before destruction in any case, the 
crew, passengers, and papers must be taken from the neu- 
tral vessel on board the belligerent ship. These are then 
immediately subject to all the dangers of war to which a 
war vessel of a belligerent is subject. Such a position 
may be an undue hardship for those who have not been 
engaged in the war and one to which the}^ should not be 
exposed. 



CONCLUSIONS ON DESTRUCTION. 75 

A belligerent vessel, with crew, passengers, and papers 
of the destroyed neutral vessel, may enter a neutral port 
to which entrance with the vessel itself would be forbid- 
den. This is in effect almost an evasion of the general 
prohibition in regard to the entrance of prize, because on 
board the belligerent vessel is the evidence upon which the 
decision of the prize court of the belligerent will be ren- 
dered. It is certain that a neutral state would be veiy 
reluctant to admit within its territory a belligerent vessel 
having on board the crew and papers of one of its own 
private vessels which the belligerent had destroyed. The 
belligerent vessel might thus obtain the supplies from the 
neutral which would enable it to carry to its prize court 
the evidence- in regard to capture. 

It does not seem possible in view of precedent and prac- 
tice to deny the right of a belligerent to destroy his 
enemy's vessel in case of necessity. Of course if the doc- 
trine of exemption of private property at sea is generally 
adopted this right can no longer be sustained. The de- 
struction of neutral vessels not involved in the service of 
the belligerent is sanctioned neither b} T precedent nor 
practice. 

Conclusion. — Certainly the rules of the Institute of Inter- 
national Law adopted at Turin in 1882 are sufficient^ 
liberal. These provide for the destruction of an enemy's 
vessel — 

1. If unseaworthy; 

2. If unable to accompany the fleet; 

3. If there is danger from a superior force of the 
enemy; 

4. If the captor can not without danger spare a prize 
crew, and 

5. If the port to which the vessel should be conducted 
is too remote. (Annuaire 1883, p. 221.) 

These rules apply to enemy vessels only, and not to 
neutral vessels. The attempts to justify the destruction 
of neutral vessels by reference to the above rules is in no 
way justified. 

The rule contained in the United States instructions to 
blockading vessels and cruisers in 1898 (General Order 



76 DESTRUCTION- OF CAPTURED VESSELS. 

492) if restricted to enemy vessels would seein satisfac- 
tory provided the destruction of vessels is to be allowed 
at all. The rule thus restricted would read: 

If there are controlling reasons why enemy vessels may not be sent 
in for adjudication, as unseaworthiness, the existence of infectious 
disease, or the lack of a prize crew, they may be appraised and sold; 
and if this can not be done, they may be destroyed. The imminent 
danger of recapture would justify destruction, if there was no doubt 
that the vessel was good prize. But in all such cases all the papers 
and other testimony should be sent to the prize court in order that a 
decree may be duly entered. 

If a seized neutral vessel can not for any reason be 
brought into port for adjudication it should be dismissed. 



Topic V. 

What position should be assumed in regard to the doc- 
trine of continuous voyage? 

CONCLUSION. 

The actual destination of vessels or goods will determine 
their treatment on the seas outside of neutral jurisdiction. 

DISCUSSION AND NOTES. 

Development of doctrine of continuous voyage.® — It was 
a common practice of the eighteenth century to limit the 
carrying trade between mother country and the dependen- 
cies to domestic vessels. Many States still impose restric- 
tions upon the coasting and domestic carr}- ing trade. When 
in the war of 1756 France opened to the Dutch the trade 
with her colonies previously confined to her own vessels, 
the English maintained that the Dutch vessels thus en- 
gaged were practically in the commercial nav} r of France 
and liable to similar treatment. Dutch vessels were accord- 
ingly captured and condemned. There were, however, 
various treaties prior to 1756 by the provisions of which 
one of the parties to the treaty was to be permitted in time 
of war to trade at ports belonging to the enemy of the 
other party. This privilege was a matter of treaty pro- 
vision between the United States and France in 1778. 
Article XXIII states: 

It shall be lawful for all and singular the subjects of the Most Chris- 
tian King, and the citizens, people, and inhabitants of the said United 
States, to sail with their ships with all manner of liberty and security, 
no distinction being made who are the proprietors of the merchandises 
laden thereon, from any port to the places of those who now are or 
hereafter shall be at enmity with the Most Christian King or the 
United States. It shall likewise be lawful for the subjects and inhabit- 
ants aforesaid to sail with the ships and merchandises aforementioned, 



"See also International Law Situations, 1901, Naval War College, 
pp. 41-84. 

77 



78 CONTINUOUS VOYAGE. 

and to trade with the same liberty and security from the places, ports, 
and havensof those who are enemies of both or cither party, without any 
opposition or disturbance whatsoever, not only directly from the places 
of the enemy aforementioned to neutral places, but also from one 
place belonging to an enemy to another place belonging to an enemy, 
whether they be under the jurisdiction of the same prince or under 
several. And it is hereby stipulated that free ships shall also give a 
freedom to goods, and that everything shall be deemed to be free 
and exempt which shall be found on board the ships belonging to the 
subjects of either of the confederates, although the whole lading or 
any part thereof should appertain to the enemies of either, contraband 
goods being always excepted. It is also agreed in like manner that 
the same liberty be extended to persons who are on board a free ship, 
with this effect, that although they be enemies to both or either party, 
they are not to be taken out of that free ship, unless they are soldiers 
and in actual service of the enemies. 

This freedom of trade which had been a matter of 
treaty agreement was claimed by the armed neutrality 
of 1780 to be a general right. If trade is opened to all 
there can not be the same imputation of violation of neu- 
trality as when in 1756 it was opened, to a single State 
which accepting the opportunity, becomes a quasi-ally of 
the belligerent. 

Apparently to avoid such difficulties as arose in the war 
of 1756, France opened the trade to the West Indian colo- 
nies permanently just before the war in 1779. The rule 
did not therefore receive much attention till revived in the 
war against France in 1793, when England attempted to 
prohibit practically all neutral trade with French colonies 
and in general the carriage of goods between French ports 
by neutrals. 

Lord StowelU referring to colonial trade in the case of 
the Irauianuel (2 Robinson's Admiralty Reports, 197), gave 
a full statement of the relation of the neutral to trade with 
the enemy ports. He said: 

Upon the outbreaking of a war it is the right of neutrals to carry on 
their accustomed trade, with an exception of the particular cases of a 
trade to blockaded places, or in contraband articles (in both which 
cases their property is liable to be condemned), and of their ships be- 
ing liable to visitation and search; in which case, however, they are 
entitled to freight and expenses. I do not mean to say that in the 
accidents of a war the property of neutrals may not be variously en- 
tangled and endangered; iu the nature of human connections it is 



LORD STOWELL'S OPINION. 79 

hardly possible that inconveniences of this kind should be altogether 
avoided. Some neutrals will be unjustly engaged in conveying the 
goods of the enemy, and others will be unjustly suspected of doing it. 
These inconveniences are more than fully balanced by the enlarge- 
ment of their commerce; the trade of the belligerents is usually inter- 
rupted in a great degree, and falls in the same degree into the lap of 
neutrals. But without reference to accidents of the one kind or the 
other, the general rule is, that the neutral has a right to carry on, in 
time of war, his accustomed trade to the utmost extent of which that 
accustomed trade is capable. Very different is the case of a trade 
which the neutral has never possessed, which he holds by no title of 
use and habit in times of peace, and which, in fact, can obtain in war 
by no other title than by the success of one belligerent against the 
other, and at the expense of that very belligerent under whose suc- 
cess he sets up his title; and such I take to be the colonial trade, gen- 
erally speaking. 

In the same case, speaking further of colonies, he says: 

Upon the interruption of a war, what are the rights of belligerents 
and neutrals, respectively, regarding such places? It is an indubitable 
right of the belligerent to possess himself of such places, as of any 
other possession of his enemy. This is his common right, but he has 
the certain means of carrying such a right into effect if he has a 
decided superiority at sea. Such colonies are dependent for their 
existence, as colonies, on foreign supplies; if they can not be supplied 
and defended, they must fall to the belligerent of course; and if the 
belligerent chooses to apply his means to such an object, what right 
has a third party, perfectly neutral, to step in and prevent the execu- 
tion? No existing interest of his is affected by it,; he can have no 
right to apply to his own use the beneficial consequences of the mere 
act of the belligerant; and to say, "True it is, you have, by force of 
arms, forced such places out of the exclusive possession of the enemy, 
but I will share the benefit of the conquest, and by sharing its bene- 
fits prevent its progress. You have in effect, and by lawful means, 
turned the enemy out of the possession which he had exclusively 
maintained against the whole world, and with whom we had never 
presumed to interfere, but we will interpose to prevent his absolute 
surrender by means of that very opening which the prevalence of your 
arms alone has effected, supplies shall be sent, and their products shall 
be exported; you have lawfully destroyed his monopoly, but you shall 
not be permitted to possess it yourself; we insist to share the fruits of 
your victories, and your blood and treasure have been expended, not 
for your own interest,, but for the common benefit of others." 

The British Order in Council issued June 8, 1793, and 
followed by others, aimed to restrict neutral commerce 
with the belligerent. It was conceded under interpreter 



80 CONTINUOUS VOYAGE. 

tion of the Orders in Council that if goods were brought 
from the belligerent territory into a neutral country they 
might be free when transshipped. 

Robinson (4 Admiralty Reports. Appendix) summarizes 
the course of the Orders in Council as affecting trade: 

Soon after the commencement of the late war (November ti, 1798), 
the tirst set of instructions that issued were framed, not on the excep- 
tion of the American war, but on the antecedent practice, and directed 
cruisers "to bring in, for lawful adjudication, all vessels laden with 
goods, the produce of any colony of France, or carrying provisions or 
supplies for the use of any such colony." The relaxations that have 
since been adopted have originated chiefly in the change that has 
taken place in the trade of that part of the world, since the establish- 
ment of an independent government on the continent of America. In 
consequence of that event, American vessels had been admitted to 
trade in some articles, and on certain conditions, with the colonies 
both of this country and France. Such a permission had become a 
part of the general commercial arrangement, as the ordinary state of 
their trade in time of peace. The commerce of America was therefore 
abridged by the foregoing instructions, and debarred of the right gen- 
erally ascribed to neutral trade in time of war, that it may be continued, 
with particular exceptions, on the basis of its ordinary establishment. 
In consequence of representations made by the American Govern- 
ment to this effect, new instructions to our cruisers were issued on the 
8th January, 1794, apparently designed to exempt American ships 
trading between their own country and the colonies of France. The 
directions were "to bring in all vessels laden with goods, the produce 
of the French West India Islands, and coming directly from any port 
of the said islands to any port in Europe." 

In consequence of this relaxation of the general principle in favor 
of American vessels, a similar liberty of resorting to the colonial 
market for the supply of their own consumption was conceded to the 
neutral States of Europe. To this effect, a third set of public instruc- 
tions was issued on the 25th January, 1798, which recited, as the 
special course of further alteration, the present state of the commerce 
of this country, as well as that of neutral countries, and directed 
cruisers "to bring in all vessels coming with cargoes, the produce of any 
island or settlement belonging to France, Spain, or Holland, and com- 
ing directly from any port of the said islands or settlements to any 
port of Europe, not being a port of this Kingdom, nor a port of the 
country to which such ships, being neutral ships, belonged." 

Neutral vessels were, by this relaxation, allowed to carry on a direct 
commerce between the colony of the enemy and their own country; 
a concession rendered more reasonable by the events of war, 'which, 
by annihilating the trade of France, Spain, and Holland had entirely 
deprived the States of Europe of the opportunity of supplying them- 



COLORABLE IMPORTATION OF GOODS. 81 

selves with the articles of colonial produce in those markets. This is 
the sum of the general rule, and of the relaxations, in the order in 
which they have occurred. 

Many protests came from the United States against the 
position assumed by Great Britain. It was claimed that 
neutrals had the right u to trade, with the exception of 
blockades and contrabands, to and between all ports of 
the enemy, and in all articles, although the trade should 
not have been opened to them in time of peace." 

Naturally the concessions in regard to importation of 
goods from the colony gave rise to questions as to what 
constituted an actual importation of the goods and a com- 
pleted voyage. 

In the case of the William there is a full discussion of 
what constitutes a completed, in distinction from an inter- 
rupted, \wage: 

What, with reference to this subject, is to be considered a direct 
voyage from one place to another? Nobody has ever supposed that a 
mere deviation from the straightest and a shortest course in which the 
voyage could be performed would change its destination and make it 
cease to be a direct one within the intendment of the instructions. 
Nothing can depend on the degree or the direction of the deviation, 
whether it be of more or fewer leagues, whether toward the coast of 
Africa or toward that of America. Neither will it be contended that 
the point from which the commencement of a voyage is to be reck- 
oned changes as often as the ship stops in the course of it. Nor will 
it the more change because a party may choose arbitrarily, by the 
ship's papers or otherwise, to give the name of a distinct voyage to 
each stage of a ship's progress. The act of shifting the cargo from 
the ship to the shore and from the shore back again to the ship does 
not necessarily amount to the termination of one voyage and the com- 
mencement of another. It may be wholly unconnected with any 
purpose of importation into the place where it is done. Supposing the 
landing to be merely for the purpose of airing or drying the goods, or 
of repairing the ship, would any man think of describing the voyage 
as beginning at the place where it happened to become necessary to 
go through such a process? Again, let it be supposed that the party 
has a motive for desiring to make the voyage appear to begin at some 
other place than that of the original lading, and that he therefore 
lands the cargo purely and solely for the purpose of enabling himself 
to affirm that it was at such other place that the goods were taken on 
board, would this contrivance at all alter the truth of the fact? 
Would not the real voyage still be from the place of the original ship- 
ment, notwithstanding the attempt to give it the appearance of 

16843—06 6 



82 CONTINUOUS VOYAGE. 

having begun from a different place? The truth may not always be 
discernible, but when it is discovered it is according to the truth and 
not according to the fiction that we are to give to the transaction its 
character and denomination. It the voyage from the place of lading 

be not really ended, it matters not by what acts the party may have 
evinced his desire of making it appear to have ended. That those 
acts have been attended with trouble and expense, can not alter their 
quality Or their effect. The trouble and expense may weigh as cir- 
cumstances of evidence to show the purpose for which the acts were 
done, but if the evasive purpose be admitted or proved, we can never 
be bound to accept, as a substitute for the observance of the law, the 
means, however operose, which have been employed to cover a breach 
of it. Between the actual importation by which a voyage is really 
ended, and the colorable importation which is to give it the appear- 
ance of being ended, there must necessarily be a great resemblance. 
The acts to be done must be almost entirely the same; but the:< 
this difference between them, the landing of the cargo, the entry at 
the custom-house, ami the payment of such duties as the law of the 
plaee requires, are necessary ingredients in a genuine importation; the 
true purpose of the owner can not be effected without them. But in 
a fictitious importation, they are mere voluntary ceremonies which 
have no natural connection whatever with the purpose of sending < n 
the cargo to another market, and which, therefore, would never be 
resorted to by a person entertaining that purpose, except with a view 
of giving to the voyage, which he has resolved to continue, the appear- 
ance of being broken by an importation which he has resolved not 
really to make." (5 Robinson's Admiralty Reports, 387. ) 

Extension of the <l<H-trin<- of continuous voyage. — The 
doctrine of continuous voyages as originally enunciated 
was intended to apply to comparatively slow-moving sail- 
ing vessels. The aim of the rule was to prevent the giving 
of aid to a belligerent by a neutral. It is undoubtedly 
proper for one belligerent to take measures which will 
prevent a neutral from aiding his opponent in his warlike 
undertaking. Therefore, it is generally held that he may 
capture and confiscate contraband having a belligerent 
destination or seize vessel and goods bound for a blockaded 
port. The question of destination becomes one of great 
importance. It is undeniable that neutral commerce in 
goods of whatever kind if bona fide commerce between 
neutral ports can not be interrupted. 

The destination of the vessel is usually evident from the 
ship's papers and should always be thus shown. If the 
port of ultimate destination and all intermediate ports of 



EXTENSION OF DOCTRINE. 83 

call are neutral, there can be no question that the destina- 
tion is neutral. If any port, an intermediate or ultimate 
port, is belligerent, the destination is considered belligerent. 

As a general rule the destination of the cargo is held to 
follow the destination of the vessel. This might be said 
to be almost the sole rule for determining the destination 
of cargo before the American civil war. At that time 
new positions began to be taken. These positions referred 
back to English practice in the war with France for sup- 
port. The doctrine now separates vessel and cargo and 
considers that a vessel ma} r have a neutral destination, while 
the cargo ma} 7 have a belligerent destination or that the 
cargo may be bound for a blockaded port while the vessel 
upon which it is for the time being has a neutral desti- 
nation. 

During the American civil war the Supreme Court, re- 
ferring to the precedents in the opinions of Lord Stowell, 
gave new interpretations to the principles and a decided 
extension to the doctrine of continuous vo} T age. While 
Lord Stowell had applied the doctrine to vessels of one of 
the belligerents carrying on forbidden trade with the 
enemy, the United States courts extended the doctrine to 
neutral vessels and cargo sailing from neutral ports with 
intent to violate blockade even if a neutral port should be 
the immediate point toward which the vessel was bound 
with the intent of there interrupting the vo} T age. Under 
the ordinary rules of war the vessel and cargo would be 
liable to capture when bound directly for the blockaded 
port. The new interpretation extended the liability to 
the vo} 7 age between the port of departure and the port of 
call provided the intent could be proven in regard to the 
earlier stage of the voyage. 

The law in regard to blockade runners shows effect of 
intent: 

A vessel of this class is engaged ab initio in illegal traffic. From the 
hour she sails to the hour she returns to her home port she is taking 
part in existing war — she is assisting or endeavoring to assist one of 
the belligerents and to thwart the military plans and purposes of the 
other. It is not necessary that she be taken in the act of breaking 
the blockade to be in delicto — she is in delicto from first to last. Fig- 



84 CONTINUOUS VOYAGE. 

uratively speaking she has hauled down the neutral flag and run up 
the liau' of the belligerents in whose behalf she is acting. Such a ves- 
sel is treated substantially as if she had actually changed her flag for 
the whole voyage. She is liable to capture and condemnation, not 

only on the outward voyage but on the return voyage, notwithstand- 
ing that her homeward bound cargo may be, and ordinarily is, inno- 
cent merchandise. Having sailed in the service of a belligerent power 
she is supposed to continue in that service until she makes her own 
port. After she has made her home port she is at liberty to resume 
her neutral flag, and when sailing under it her previous conduct is 
not open to inquiry. (The Galen, 37 U. S. Court of Claims, 89, Nott, 
C. J., Dec. 9, 1901.*) 

The French prize court in the case of the Frau-Houwirm 
in 1855 affirmed that — 

Contraband of war is liable to seizure under a neutral flag, when it 
belongs to the enemy, or when it is destined to the territory, the army 
or fleet of the enemy. 

In the case of the ( Circassian decided in 1864 (2 Wal- 
lace, Supreme Court Reports. 135). Chief Justice Chase 
affirmed that — 

It is a well-established principle of prize law, as administered by 
the courts, both of the United States and ( Treat Britain, that sailing 
from a neutral port with intent to enter a blockaded port, and with 
knowledge of the existence of the blockade, subjects the vessel, and, 
in most cases, its cargo, to capture and condemnation. Yeaton v. 
Fry, 5 Cranch, 335 ; 1 Kent Com., 150; The Frederick Molke, 1 C. Rob., 
72; The Columbia, 1 C. Rob., 154; The Neptunus, 2 C. Rob., 94. We 
are entirely satisiied with this rule. It was established, with some 
hesitation, when sailing vessels were the only vehicles of ocean com- 
merce; but now, when steam and electricity have made all nations 
neighbors, and blockade running from neutral ports seems to have been 
organized as a business, and almost raised to a profession, it is clearly 
seen to be indispensable to the efficient exercise of belligerent rights, 
it is not likely to be abandoned until "the nations, by treaty, shall 
consent to abolish capture of private property on the seas, and with it 
the whole law and practice of commercial blockade. 

And further the decision states: 

We agree that if the ship had been going to Havana with an honest 
intent to ascertain whether the blockade at New Orleans yet remained 
in force, and with no design to proceed farther if such should prove 
to be the case, neither ship nor cargo would have been subject to 
lawful seizure. But it is manifest that such was -not the intent. 
The existence of the blockade was known at the inception of the 
voyage and its discontinuance was not expected. The vessel was 



FURTHER EXTENSION OF DOCTRINE. 85 

chartered and her cargo shipped with the purpose of forcing the 
blockade. The destination to Havana was merely colorable. It 
proves nothing beyond a mere purpose to touch at that port, per- 
haps and probably, with the expectation of getting information which 
would facilitate the success of the unlawful undertaking. It is quite 
possible that Havana, under the circumstances, would have turned 
out to be, as was insisted in argument, a locus penitenlite , but a place 
for repentance does not prove repentance before the place was reached. 
It is quite possible that the news w r hich would have met the vessel at 
Havana would have induced the master and shippers to abandon their 
design to force the blockade by ascending the Mississippi, but future 
possibilities can not change present conditions. Nor is it at all certain 
that the purpose to break the blockade would have been abandoned. 
On the contrary, it is quite- possible that the "ulterior destination" 
mentioned in the bills of lading would have been changed to some 
other blockaded port. But this is not important. Neither possibili- 
ties nor probabilities could change the actual intention one way or 
another. At the time of capture ship and cargo were on their way to 
New Orleans, under contract that the cargo should be discharged there 
and not elsewhere, and that the blockade should be forced in order to 
the fulfillment of that contract. This condition made ship and cargo 
then and there lawful prize. 

In the same case the court also held that — 

A vessel sailing from a neutral port with intent to violate a blockade 
is liable to capture and condemnation as a prize from the time of sail- 
ing, though she intend to call at another neutral port, not reached at 
time of capture, before proceeding to her ulterior destination. 

The position here taken makes the vessel liable for in- 
tent of the voj'age. 

It may happen, however, that a neutral vessel is mak- 
ing a voyage between two neutral ports only, but that the 
cargo has a belligerent destination to which it is to be 
taken by another vessel. Could the doctrine of continu- 
ous voyages be extended to apply to ship and cargo in the 
first stage of the voyage between the neutral ports? 

The doctrine of continuous voyage was further extended 
to cover such instances in the case of the Berm uda (3 
Wallace U. S. Supreme Court Reports, p. 514) in 1865, in 
which Chief Justice Chase said: 

The interposition of a neutral port between neutral departure and 
belligerent destination has always been a favorite resort of contraband 
carrriers and blockade runners. But it never avails them when the 
ultimate destination is ascertained. A transportation from one point 



86 CONTINUOUS VOYAGE. 

to another remains continuous so long as intent remains unchanged, 
no matter what stoppages or transshipments intervene. 

This was distinctly declared by tins court in 1855 in Jecker v. 
Montgomery (18 Mow., 114), in reference to American shipments to 
Mexican ports during the war of this country with Mexico, as fol- 
lows: "Attempts have been made to evade the rule of public law by 

the interposition of a neutral port between the shipment from the 
belligerent port and the ultimate destination in the enemy's country, 
hut ill all such cases the goods have been condemned as having been 
taken in a course of commerce rendering them liable to confiscation." 

The same principle is equally applicable to the conveyance of con- 
traband to belligerents and the vessel which with the consent of the 
owner is so employed in the first stage of a continuous transportation 
is equally liable to capture and confiscation with the vessel which is 
employed in the last if the employment is such as to make either so 
liable. 

This rule of continuity is well established in respect to cargo. 

At first, Sir William Scott held that the landing and warehousing 
of the goods and the payment of the duties on importation was a suffi- 
cient test of the termination of the original voyage and that the sub- 
sequent exportation of them to a belligerent port was lawful. But in 
a later case, in an elaborate judgment, Sir William Grant reviewed all 
the cases, and established the rule, which has never been shaken, 
that even the landing of goods and payment of duties does not inter- 
rupt the continuity of the voyage of the cargo, unless there be an 
honest intention to bring them into the common stock of the country. 
If there be an intention, either formed at the time of original ship- 
ment or afterwards, to send the goods forward to an unlawful desti- 
nation, the continuity of the voyage will not be broken, as to the 
cargo, by any transactions at the intermediate port. 

There seems to be no reason why this reasonable and settled doc- 
trine should not be applied to each ship where several are engaged 
successively in one transaction, namely, the conveyance of a contra- 
band cargo to a belligerent. The question of liability must depend on 
the good or bad faith of the owners of the ships. If a port of the 
voyage is lawful, and the owners of the ship conveying the cargo in that 
port are ignorant of the ulterior destination and do not hire their ship 
with a view to it, the ship can not be liable; but if the ulterior desti- 
nation is the known inducement to the partial voyage and the ship is 
engaged in the latter with a view to the former, then whatever liability 
may attach to the final voyage must attach to the earlier, undertaken 
with the same cargo and in continuity of its conveyance. Successive 
voyages, connected by a common plan and a common object, form a 
plural unit. They are links of the same chain, each identical in 
description with every other, and each essential to the continuous 
whole. The ships are planks of the same bridge, all of the same kind, 
and all necessary to the convenient passage of persons and property 
from one end to the other. 



CASE OF THE SPRINGBOK. 87 

In affirming the decision of the district court in the 
case of the Stephen Hart in L865 (3 Wallace. Supreme 
Court Reports, p. 559) Chief Justice Chase said: 

Neutrals who place their vessels under belligerent control, and 
engage them in belligerent trade, or permit them to be sent with con- 
traband cargoes under cover of false destination to neutral ports, 
while the real destination is to belligerent ports, impress upon them 
the character of the belligerent in whose service they are employed, 
and can not complain if they are seized and condemned as enemy 
property. 

The case of the Springbok, decided in the Cnited States 
Supreme Court in 1860, also gave full extension to the doc- 
trine of continuous vovao-e. This vessel sailed from Lon- 
don December 8, 1862, on a voyage ostensibly for Nassau. 
The vessel was captured before reaching that port and 
brought into New York where she was libeled as prize. 
The district court condemned the vessel and cargo as prize 
of war. The case was appealed to the Supreme Court, 
which reversed the decree as to the vessel and affirmed the 
decree as to the cargo. 

The summary of the case shows that when goods des- 
tined for a belligerent are in transit between neutral ports 
in a neutral ship the ship is liable to seizure in order to 
secure the condemnation of the goods, but itself may not 
be condemned as prize. 

In regard to the cargo, Mr. Chief Justice Chase gave 
the opinion of the court that — 

Upon the whole case we can not doubt that the cargo was originally 
shipped with the intent to violate the blockade; that the owners of the 
cargo intended that it should be transshipped at Nassau into some 
vessel more likely to succeed in reaching a blockaded port than the 
Springbok; that the voyage from London to the blockaded port was, as 
to the cargo, both in law and in intent of the parties, one voyage; and 
that the liability to condemnation, if captured during any part of the 
voyage, attached to the cargo from the time of sailing. ( 5 Wallace, 1.) 

Travers Twiss, commenting on these cases in 1877, says: 

In the case of the Springbok and her cargo the court released the 
ship and condemned the cargo. It released the ship, being satislied 
that it was going no farther than to Nassau, a neutral port. It con- 
demned the cargo, having no doubt that it was the intention of the 



88 CONTINUOUS VOYAGE. 

owners to tranship it at Nassau to some blockaded port. The judg- 
ment of the court was thus expressed: "On the whole, we can not 
doubt that the cargo was originally shipped with intent to violate the 
blockade; that the owners of the cargo intended that it should be 
transhipped at Nassau into some vessel more likely to succeed in reach- 
ing safely a blockaded port than the Springbok; that the voyage from 
London to the blockaded port was, as to cargo, both in law and in the 
intent of the parties, one voyage, and the liability of condemnation, 
if captured during any part of the voyage, attached to the cargo from 
the time of sailing." The Chief Justice had already illustrated the 
principle in the case of the Bermuda by a somewhat fanciful metaphor. 
"Successive voyages connected by a common plan and a common 
object form a plural unit. They are links of the same chain, each 
identical in description with every other and each essential to the con- 
tinuous whole." Unfortunately, however, as regards the application 
of the metaphor to the case of the cargo of the Springbok, the last link, 
which was essential to complete the chain, was wanting, as a matter of 
fact, whilst in the English cases, from which the metaphor has been 
borrowed, the chain was in fact complete. (The Doctrine of Contin- 
uous Voyages, Law Magazine and Review, Nov., 1877, p. 24.) 

Travers Twiss also protested against the extension of 
the idea of blockade through an attempt to introduce it 
as a factor in continuous voyage, as in the case of the 
Springbok. He said: 

Whatever maybe the correct interpretation of the Fourth Article of 
the Declaration of Paris, and whatever effect may be practically given 
to it by the powers who are parties to it, one thing may be affirmed 
for certain, that it was the intention of those who drew up that Dec- 
laration to mitigate and not to aggro rate the restraint imposed upon the 
commerce of Neutrals by the blockade of an enemy's ports. Great 
Britain and the United States of America had until then been content 
to enforce against neutral merchants the confiscation of their prop- 
erty upon proof of some constructive attempt upon their part to violate 
blockade; it has remained for the younger sister, under her extraordi- 
nary difficulties, to initiate the doctrine of prospective intention, on the 
part of a neutral merchant, to violate blockade, and to subject him to 
the confiscation of his property, not upon the evidence of any present 
voyage of the ship and cargo, in which the ship and cargo have 
been intercepted, but upon the presumption of a future voyage of the 
cargo alone to ablockaded port, after it has been landed from the ship 
at a neutral port." He also contends against confiscation "upon the 
suspicion" that the cargo has an ulterior destination to enemy's uses. 
(Law Magazine and Review, Nov. 1877, p. 34.) 



CASE OF THE SPRINGBOK. 89 

Speaking of the decision in the case of the Springbok^ 
Walker says: 

This decision, it is very evident, materially extends the risks of the 
neutral trader in the interests of the belligerent, and it has accord- 
ingly been the subject of severe and not unmerited adverse criticism 
at the hands of supporters of the freedom of neutral commerce. 
(Science of International Law, 1893, p. 516.) 

Sir Robert Phillimore says: 

It seems to me after much consideration, and with all respect for 
the high character of the tribunal, difficult to support the decision of 
the majority of the Supreme Court of the United States in the case of 
the Springbok, that a cargo shipped for a neutral port can be con- 
demned on the ground that it was intended to tranship it at that port 
and forward it by another vessel to a blockaded port. ( International 
Law, CCXCVIIL ) 

Hall also takes positive grounds in opposition to the 
doctrine of continuous voyage, as enunciated by the United 
States courts. He says: 

By the American courts this idea of continuous voyage was seized 
upon and applied to cases of contraband and blockade. Vessels were 
captured while on their voyage from one neutral port to another and 
were then condemned as carriers of contraband or for intent to break 
blockade. They were thus condemned not for an act — for the act done 
was in itself innocent, and no previous act existed with which it could 
be connected so as to form a noxious whole — but on mere suspicion of 
intention to do an act. Between the grounds upon which these and 
the English cases were decided there was of course no analogy. The 
American decisions have been universally reprobated outside the 
United States, and would probably now find no defenders in their own 
country. (International Law, 5th ed., p. 669.) 

Mr. Atlay, editing this edition of Hall's work, thinks 
"that the destination of the cargo, not merely the desti- 
nation of the vessel, will be the criterion" (Note, p. 672), 
would be the position which would be sustained by the 
British Government. 

The case of the Springbok (1866) has been discussed most 
widely and seriously. The jurists on the Continent were 
uniformly opposed to the principles supposed to be enun- 
ciated in the decision. A formal statement was issued by 
some of the leading authorities on international law in 
1882. The French text appears in the Revue de Droit In- 



90 CONTINUOUS VOYAGE. 

ternational et de Legislation Comparee (Tome xiv, 1882, 
p. 329), and a translation is given in Wharton's Interna- 
tional Law Digest (Vol. Ill, sec. 362. p. 401) as follows: 

Opinion delivered by Professor Arntz, professor of international law 
in the University of Brussels and advocate; Asser, professor of inter- 
national law in the University of Amsterdam and legal councilor of 
the department of foreign affairs at The Hague, advocate, etc.; Bul- 
merincq, privy councilor, professor of international law in the Uni- 
versity of Heidelberg, etc.; Gessner, doctor of civil law, acting impe- 
rial councilor of Legation at Berlin; William Edward Hall, doctor of 
laws of the University of Oxford: De Martens, professor of interna- 
tional law in the University of St. Petersburg and councilor at the 
minister of foreign affairs there, etc.; Pierantoni, professor of inter- 
national law in the University of Home and member of the council 
of diplomatic controversy, etc.; Renault, professor of international 
law in the Faculty of Law and in the Free School of Political Science 
at Paris; Albeiic Bollin, professor of law in the University of Ghent 
and advocate and Sir T ravers Twiss, Q. C, formerly professor of inter- 
national law in London and of civil law in Oxford, late Queen's 
advocate-general, etc. 

"• We, the undersigned members of the maritime prize commission, 
nominated by the Institute of International Law from amongst its 
members to frame a scheme of international maritime prize law, hav- 
ing been consulted as to the juridical soundness of the doctrine laid 
down and applied by the Supreme Court of the United States of 
America in the case of the Springbok, have unanimously given the 
following opinion: 

"That the theory of continuous voyages, as we find it enunciated 
and applied in the judgment of the Supreme Court of the United 
States of America, which condemned as good prize of war the entire 
cargo of the British bark Springbok (1867), a neutral vessel on its wax- 
to a neutral port, is subversive of an established rule of the law of 
maritime warfare, according to which neutral property on board a 

jsel under a neutral flag, whilst on its way to another neutral port, 
is not liable to capture or confiscation by a belligerent as lawful prize 
of war; that such trade when carried on between neutral ports has, 
according to the law of nations, ever been held to be absolutely free, 
and that the novel theory, as before propounded, whereby it is pre- 
sumed that the cargo, after having been unladen in a neutral port, 
will have an ulterior destination to some enemy port, would aggravate 
the hindrances to which the trade of neutrals is already exposed, and 
would, to use the words of Bluntschli, 'annihilate' such trade, by 
subjecting their property to confiscation, not upon proof of an actual 
voyage of the vessel and cargo to an enemy port, but upon suspicion 
that the cargo, after having been unladen at the neutral port to which 
the vessel is bound, may be transshipped into some other vessel and 
carried to some effectively blockaded enemy port. 



CASE OF THE DOLPHIN. 91 

"That theory above propounded tends to contravene the efforts of 
the European powers to establish a uniform doctrine respecting the 
immunity from capture of all property under a neutral flag, contraband 
of war alone excepted. 

"That the theory in question must be regarded as a serious inroad 
upon the rights of neutral nations, inasmuch as the fact of the desti- 
nation of a neutral vessel to a neutral port would no longer suffice of 
itself to prevent the capture of goods noncontraband on board. 

"That, furthermore, the result would he that, as regards blockade, 
every neutral port to which a neutral vessel might be carrying a neu- 
tral cargo would become constructively a blockaded port if there were 
the slightest ground for suspecting that the cargo, after being unladen 
in such neutral port was intended to be forwarded in some other ves- 
sel to some port actually blockaded. 

"We, the undersigned, are accordingly of opinion that it is extremely 
desirable that the Government of the United States of America, which 
has been on several occasions the zealous promoter of important 
amendments of the rules of maritime warfare, in the interests of neu- 
trals, should take an early opportunity of declaring, in such form as it 
may see tit, that it d< >es not intend t< i incorporate the above-propounded 
theory into its system of maritime prize law, and that the condemna- 
tion of the cargo of the Springbok shall not be adopted as a precedent 
by its prize courts.'' 

The Dolphin, ostensibly prosecuting a voyage from Liv- 
erpool to Nassau during- the American civil war, was cap- 
tured off Porto Rico. A claim to the vessel and cargo 
was made by the British owners on the ground that there 
was no intention to violate any neutral obligations. The 
court held that — 

If we suppose the vessel and cargo to be owned as claimed, and that 
there was no intention on the part of the owner that the vessel should 
proceed with the cargo to a port of the enemy, then there would be 
no ground whatever to justify the capture or condemnation of either 
of them. Subject to the right of belligerent cruisers to visit and search 
merchant vessels, to ascertain their neutral or hostile characters and 
the character of their cargoes, and the legality of their voyages, neu- 
trals possess an undisputed light to trade and carry on commerce 
among themselves in any kinds of merchandise they please, whether 
of the nature of contraband of war or not. Indeed, there can be no 
such thing as articles contraband of war in a strictly neutral trade. 
But if, on the other hand, it was the intention of the owner that the 
vessel should simply touch at Nassau, and should proceed thence to 
Charleston or some other port of the enemy, then the voyage was not 
a voyage prosecuted by a neutral from one neutral port to another, but 
was a voyage to a port of the enemy, begun and carried on in viola- 
tion of the belligerent rights of the United States to blockade the 



92 CONTINUOUS VOYAGE. 

enemy's ports and prevent the introduction of munitions of war. The 
act of Bailing for a blockaded port, with the knowledge of the exist- 
ence of the blockade and with an intent to enter, is itself an attempt 
to break it, which subjects the vessel and cargo to capture in any part 
of its voyage. The Columbia, 1 C. Rob. Adm.,154; The Neptunus, 2C, 
Rob. A dm., 110. So, also, the offense of attempting to carry articles 
contraband of war to the enemy is complete and the vessel liable to 
capture the moment she enters upon her voyage. The Tmina,S C, 
Rob. Adm., 167. The offense consists in the act of sailing, coupled 
with the illegal intent. The cutting up of a continuous voyage into 
several parts, by the intervention or proposed intervention of sev- 
eral intermediate ports, may render it the more difficult for cruisers 
and prize courts to determine where the ultimate terminus is intended 
to be; but it can not make a voyage which in its nature is one, to 
become two or more voyages, nor make any of the parts of one entire 
voyage to become legal which would be illegal if not so divided. 
When the truth is discovered, it is according to the truth and not 
according to the fiction, that the question is to be determined. The 
Maria, 5 C, Rob. Adm., 365; The IT///., id., 385; The Richmond, id., 
325; The Thomyris, Edw. Adm., 17. 

It is argued that it was lawful for the vessel to go to Nassau, not- 
withstanding the existence of an intention that she should proceed 
thence to Charleston, for the reason that, until after she had entered 
on the last stage of her voyage, the whole matter rested in possibility 
merely — in intention only, and not in act — and that the intention to 
commit an offense in futuro is not tantamount in law to its actual 
commission in prsesenti. Hut this argument begs the whole question. 
It was not lawful for the vessel to go to Nassau, with an intention of 
continuing the voyage thence to Charleston in a direct course, without 
going to Nassau at all. The fallacy consists in supposing that there is 
something in the intention to stop at a neutral port, which, in itself, is 
innocent enough, that will extinguish the illegality of an additional 
guilty intention to proceed on, beyond such a port, to a blockaded 
port, and thus legitimatize the first stage of the voyage. But the 
voyage is one, from the port of lading to the port of delivery, and, if 
unlawful in any part, is unlawful throughout. 

It is also argued that a locus penitent lone existed until the vessel 
had departed from Nassau on her voyage to a blockaded port, and 
that the voyage might be ended there, or changed to a lawful port. 
But this argument will apply with equal force to a voyage in which no 
intermediate port is intended to be interposed. The owner or master 
may in any case, in port or in the middle of the ocean, abandon the 
illegal purpose and change the voyage. If this be done voluntarily, 
before capture, the original offense is extinguished, and the vessel will 
be restored; but if the illegal purpose exists at the time of capture, the 
vessel is taken in delicto, whether the voyage is prosecuted in a direct 
course or circuitously. If the illegal purpose is shown to exist at the 
inception of the voyage, it will be presumed to exist up to the time of 



IMPORTANCE OF DESTRUCTION. 93 

capture, unless it is satisfactorily shown that the purpose had been 
abandoned and the voyage changed. (The Dolphin, Federal Cases, 
No. 3975. ) 

Of the above decision the solicitor of England (Sir 
Koundell Palmer) said in the House of Commons, June 

29, 1863: 

If the owners imagine that the mere fact of the vessel touching at 
Nassau when on such an expedition exonerated her, they were very 
much mistaken. 

Later the principle applied in the case of the Dolphin 
was cited and made in some respects more definite in the 
case of tike Pearl. The judge said: 

I have already decided, in the case of the Dolphin (Case No. 3975), 
that a vessel bound on a voyage from Liverpool to Nassau, with an 
intention of touching only at the latter port and of proceeding thence 
to a blockaded port of the enemy, is engaged in an attempt to violate 
the blockade, which subjects her to capture in the antecedent as well 
as in the ultimate stage of the voyage — before arriving at Nassau as 
well as after having left that port. I think the law also is that if an 
owner sends his vessel to a neutral port with a settled intention to 
commence from such a port a series of voyages to a blockaded port he 
thereby commences to violate the blockade, and subjects his vessel to 
capture, notwithstanding he may also intend to unlade the vessel at 
the neutral port, discharge the crew, and give all other external man- 
ifestations of an intention to end the voyage at such port. Where a 
deliberate purpose exists to violate a blockade, and measures are ac- 
tually taken to accomplish that object, the law couples the act and 
the intent together and declares the offense to be complete. The re- 
sorting, therefore, to a neutral port for the purpose of the better dis- 
guising the intention, or of procuring a pilot for the blockaded port, 
or of perfecting the arrangements so as to increase the chances of suc- 
cessful violation of the blockade, will not in the least extenuate the 
offense or avoid the penalty. These measures may increase the diffi- 
culty of discovering the true intention, but whenever it is discovered 
it will give to the transaction its true legal character. (Federal Cases, 
No. 10874.) 

Importance of destination, of vessel. - Dana in his note 
(231) to Wheaton's International Law says: 

The examination into the continuous nature of voyages is or may be 
necessary in reference alike to blockade, trade with enemies, unneutral 
service, and carrying contraband, and indeed to all cases where the 
destination of the vessel or cargo is material. The right of the bel- 
ligerent is to know the facts. The policy of the neutral is to conceal 



94 CONTINUOUS VOYAGE. 

then). If the destination is really toa hostile port — if that is the plan 
or scheme of the voyag< — it is. of course, immaterial what formal acts 
intended to deceive are interposed (p. 667, sec. 

The Turkish declaration of May L2, 1 s 7 7 . contains the 
following: 

."». Arind'empeeher la contrebande de guerre, leGouvernement Otto- 
man usera du droit de visite tant en haute mer (pie dans Its eaux Otto- 
mans et lors du passage par les Ih troits des navires nentres en desti- 
nation d'un port Russe on d'un point de la cote occupe" parl'ennemi, 
ou ineme, en cas de suspicion, en destination d'un port Ottoman on 
nentre. 

The subject of destination is quite fully treated in arti- 
cles of the British Admiralty Manual of Naval Prize Law 
(Holland's edition, L888), issued by authority of the Lords 
Commissioners of the Admiralty of Great Britain: 

DESTINATION OF THE VESSEL. 

67. If any of the Goods are lit for purposes cither of War exclusively 
or of War as well as of Peace, the Commander of the Cruiser should 
proceed to ascertain the destination of the Vessel. This should be 
done by inspection of her Charter party, her Logbook, and other doc- 
uments, and by inquiries from her Master and Crew. 

68. A Vessel's destination should be considered Neutral if both the 
port to which she is bound and every intermediate port at which she 
is to call in the course of her voyage be Neutral, and if in no part of her 
Voyage she is to go to the Enemy's Fleet at Sea. 

69. A Vessel's destination should he considered Hostile if either the 
port to which she is hound, or any intermediate port at which she is 
to call in the course of her voyage, be Hostile, or if in any part of her 
Voyage she is to go to the Enemy's Fleet at Sea. 

70. It frequently happens that a Vessel'sdestinationisexpressed in her 
papers to he dependent upon contingencies. In such case the destina- 
tion should he presumed Hostile if any one of the ports which under 
any of the contingencies she may be intended to touch at or go to be 
Hostile; hut this presumption may be rebutted by clear proof that the 
Master has definitively abandoned a Hostile destination and is pursu- 
ing a Neutral one. 

71. The ostensible destination of the Vessel is sometimes a Neutral 
port, while she is in reality intended, after touching and even landing 
and colorably delivering over her cargo there, to proceed with the 
same cargo to an Enemy port. In such a case the voyage is held to 
be "Continuous," and the destination is held to be Hostile throughout. 

~'l. The destination of the Vessel is conclusive as to the destination 
of the Goods bn hoard. If, therefore, the destination of the Vessel be 
1 [ostile, then the destination of the ( roods ou hoard should be consid- 



CASES IN SOUTH AFRICAN WAR. 95 

ered Hostile also, notwithstanding it may appear from the Papers or 
otherwise that the Goods themselves are not intended for the Hostile 
port, but are intended either to be forwarded beyond it to an ulterior 
neutral destination, or to be deposited at an intermediate Neutral port. 
73. On the other hand, if the destination of the Vessel be Neutral, 
then the destination of the Goods on board should be considered Neu- 
tral, notwithstanding it may appear from the Papers or otherwise that 
the Goods themselves have an ulterior Hostile destination, to be at- 
tained by transshipment, overland conveyance, or otherwise. 

Question of destination of cargo in South African war. — 
The British rules seem logical and it was expected that 
this manual expressed the British point of view. The 
attitude of Great Britain was, however, tested in the South 
African war in December, 1899. The States with which 
Great Britain found herself at war were inland States with 
no seaports. The port through which supplies could be 
most easily forwarded to the South African belligerents 
was the neutral Portuguese port of Lourenco Marquez on 
Delagoa Bay. This port was connected by rail with the 
South African Republic. Great Britain maintained the 
right to visit and search vessels. 

During the South African war, in December, 1899, and 
January, 1900, three German vessels were seized by the 
the British war vessels. These vessels were the Herzog, 
the General, and the Bunde&rath. They were seized on 
suspicion of carrying contraband and enemy persons to 
the South African Republic. Of this action Germany took 
cognizance. 

The German Government, on learning of the seizure of 
the Bundesrath, immediately protested and the German 
ambassador stated to the Marquis of Salisbury: 

That the Imperial Government, after carefully examining the matter 
and considering the judicial aspects of the case, are of the opinion that 
proceedings before a Prize Court are not justified. 

This view is grounded on the consideration that proceedings before 
a Prize Court are only justified in cases where the presence of contra- 
band of war is proved, and that, whatever may have been on board 
the Buiidesrath, there could have been no contraband of war, since, 
according to the recognized principles of international law, there can 
not be contraband of war in trade between neutral ports. 

He also supported his opinion by reference to the Brit- 
ish Admiralty Manual of Naval Prize 1 Law which declared 



96 CONTINUOUS VOYAGE. 

that '*a vessel's destination should be considered neutral, 
if both the port to which she is bound and every interme- 
diate port at which she is to call in the course of her voy- 
age be neutral." and "the destination of the vessel is con- 
clusive as to the destination of the goods on board." 

Lord Salisbury replied that the Admiralty Manual stated 
"in a convenient form the general principles by which 
Her Majesty's officers are guided in the exercise of their 
duties" and 

That it does not treat of questions which will ultimately have to be 
disposed of by the Prize Court. * * * In the opinion of Her Maj- 
esty's Government the passage cited from the manual "that the des- 
tination of the vessel is conclusive as to the destination of the goods 
on board," has no application to such circumstances as had now arisen. 

It can not apply to contraband of war on board of a neutral vessel 
if such contraband was at the time of seizure consigned or intended to 
be delivered to an agent of the enemy at a neutral port, or, in fact, 
destined for the enemy's country. 

The true view in regard to the latter category of goods is, as Her 
Majesty's Government believe, correctly stated in paragraph 813 of 
Professor Bluntschli's "Droit International Codifie" (French transla- 
tion of 1.S74, second edition of the work of this eminent German 
jurist): "Si lea navires on marchandises ne sont expedies a destina- 
tion d'un port neutre que pour mieux venir en aide a l'ennemi, il y 
aura contrebande de guerre et la confiscation sera justifiee." 

Her Majesty's Government are unable, therefore, to agree that 
there are grounds for ordering the release of the Bundesrath without 
examination by the Prize Court as to whether she was carrying contra- 
band of war belonging to or destined for the South African Repub- 
lics. But they fully recognize how desirable it is that this examina- 
tion should be carried through at the earliest possible moment, and 
that all proper consideration should be shown tor the owners and for 
innocent passengers and merchandise on board of her. Repeated and 
urgent instructions have been sent by telegraph for this purpose, and 
arrangements have been made for the speedy transmission of the mails. 
(Parliamentary Papers, Africa, No. 1, (1900)). 

The British Government was placed in an uncomfortable 
position; no contraband was found. 

As we have seen, the examination proved futile, the compensation 
was duly paid, and the incident closed. It is unlikely that the exact 
circumstances of the Bundesrath and her consorts will ever be repeated 
or that we shall find ourselves at war with a civilized power possess- 
ing no seaboard. But should we in the future become involved in 
hostilities with a maritime power it is certain that the interpretation 
of the questions grouped generally under the term of '* continuous 



GERMAN ATTITUDE. 97 

voyage" will assume grave importance. And I venture to think that 
the attitude of whatever British Government may be in office will 
tend rather to the views expressed by Lord Salisbury than to those 
enunciated by Mr. Hall, and that the destination of the cargo, not 
merely the destination of the vessel, will be the criterion. (Atlay's 
note to Hall's International Law, 5th ed., p. 671.) 

Count von Biilow, in the German Reichstag, on January 
19, 1900, discussing the seizure of certain German steam- 
ers by British war vessels, said: 

I should like to lay down the following propositions, drawn up in 
conjunction with other competent departments, as a system of law 
which shall be operative in practice, and a disregard for which would, 
in our opinion, constitute a breach of international treaties and cus- 
toms : 

1. Neutral merchant ships on the high seas or in the territorial 
waters of the belligerent Powers (apart from the right of convoy, 
which does not arise in the case in point) are subject to the right of 
visit by the war ships of the belligerent parties. This undoubtedly 
applies to waters which are not too remote from the seat of war. No 
special agreement exists at present as regards mail steamers. 

2. The right of visit is to be exercised with as much consideration 
as possible and without undue molestation. 

3. The procedure in visiting a vessel consists of two or three acts, 
according to the circumstances of each case — stopping the ship, exam- 
ining her papers, and searching her. The first two acts may be 
undertaken at any time and without other preliminary proceeding. 
If the neutral vessel resists the order to stop, or if irregularities are 
discovered in her papers, or if the presence of contraband is revealed, 
then the belligerent vessel may capture the neutral in order that the 
case may be investigated and decided upon by a competent prize 
Court. 

4. By the term "contraband of war" only such articles or persons 
are to be understood as are suited for war and at the same time are 
destined for one of the belligerents. The class of articles to be 
included in this definition is a matter of dispute, and, with the excep- 
tion of arms and ammunition, is determined, as a rule, with refer- 
ence to the special circumstances of each case, unless one of the bel- 
ligerents has expressly notified to the neutrals, in a regular manner, 
what articles it intends to treat as contraband, and has met with no 
opposition. 

5. Discovered contraband is liable to confiscation, whether with or 
without compensation depends on the circumstances of each case. 

6. If the seizure of the vessel was not justified, the belligerent State 
is bound to order the immediate release of ship and cargo, and to pay 
full compensation. 

According to the above, and in view of the present practice of nations, 

16843—06 7 



98 CONTINUOUS VOYAGE. 

it would not have been possible to lodge a protest against the stopping 
on the high seas of the three steamers of the East African Line, or 
against the examination of their papers. On the other hand, by the 
same standard, the seizure and conveying to Durban of the Bundes- 
rath and Herzog and the discharging of the cargoes of the Bundesrath 
and the General were undertaken upon insufficiently founded suspicion, 
and do not appear to have been justified. 

I should wish to take this opportunity for observing that we strove 
from the outset to induce the English Government, in dealing with 
neutral vessels consigned to Delagoa Bay, to adhere to that theory of 
international law which guarantees the greatest security to commerce 
and industry and which finds expression in the principle that for ships 
consigned from neutral States to a neutral port the notion of contra- 
band of war simply does not exist. To this the English Government 
demurred. We have reserved to ourselves the right of raising this 
question in the future — in the first place, because it was essential to 
us to arrive at an expeditious solution of the pending difficulty; and 
secondly, because, in point of fact, the principle here set up by us 
has not yet met with universal recognition in theory and practice. 
(Quoted in Parliamentary Papers, Africa No. 1 (1900), p. 24.) 

During the war in South Africa Lord Salisbuiy stated 
the position of the British Government on what consti- 
tutes hostile destination as follows: 

Lord Salisbury to Mr. Choate. 

Foreign Office, January 10, 1900. 
Dear Mr. Choate: Our view is that food stuffs with a hostile desti- 
nation can be considered contraband of war only if they are supplies 
for the enemy's forces. It is not sufficient that they are capable of 
being so used; it must be shown that this was in fact their destination 
at the time of the seizure. 

Believe me, etc. Salisbury. 

(U. S. Foreign Relations, 1900, p. 555.) 

On February 24, 1900, Mr. Choate reported that— 

Lord Salisbury suggested that an ultimate destination to citizens 
of the Transvaal, even of goods consigned to British ports on the way 
thither, might, if the transportation were viewed as one "continuous 
voyage," be held to constitute, in a British vessel, such a "trading 
with the enemy" as to bring the vessel within the provisions of the 
municipal law. ( 0". S. Foreign Relations, 1900, p. 596. ) 

To the suggestion made by Mr. Salisbuiy, Mr. Hay 

said: 

The Department has not failed to observe the suggestion made to 
Mr. Choate by Lord Salisbury that an ultimate destination to citizens 
of the Transvaal, even of goods consigned to British ports on the way 



CONTINENTAL OPINION. 99 

thither, might, if transportation were viewed as one "continuous 
voyage," be held to constitute, in a British vessel, such a "trading 
with the enemy" as to bring the vessel within the provisions of the 
municipal law. 

In view of the prospect of a practical solution of the question of the 
seizures along the lines arranged between Mr. Choate and Her Maj- 
esty's Government, it is not deemed necessary for the Department to 
express at present either its assent or dissent to the said suggestion; 
but it would regret to have such an issue actually raised by the British 
Government, and it does not seem probable that it will be done, either 
on account of the seizures made in the future or through the failure to 
consummate the settlement already arranged for the seizures which 
have been made. (U. S. Foreign Relations, 1900, p. 609.) 

In referring to the doctrine of continuous voyage as 
applied by Great Britain during the South African war, 
Professor Despagnet gives the position which is main- 
tained by many European writers. He says: 

Pour nous, la theorie de la continuite de voyage est tou jours inad- 
missible, meme dans le cas out il s'agit de contrebande dirigee vers un 
pays neutre limitrophe de PEtat ennemi qui n'a pas d'acces a lamer. 
Mais, objecte-t-on, la repression de la contrebande est alors impossible 
et le pays ennemi recevra impunement des arines et des munitions 
venant de Petranger au detriment de son adversaire impuissant a s'y 
opposer? Nous repondons que ce resultat n'est pas plus facheux ni 
plus inique que la faculte laissee au belligerant, pays maritime, 
d'arreter la contrebande au prejudice de son ennemi, tandis que 
celui-ci, faute de marine, ne pourrait entraver en rien P arrive 1 e de la 
contrebande dans les ports de Pautre. N'etait-ce pas choquant de 
voir P Angleterre acheter et recevoir, sans obstacle, de Petranger, des 
canons, des obus, des chevaux, des mulets, etc., tandis que les croiseurs 
brittaniques fermaient aisement la voie des ports de la Mozambique, 
la seule par laquelle la contrebande pouvait parvenir aux Boers? 
Entre deux pays maritimes, la situation est egale au point de vue de 
la repression de la contrebande, ou du moins P inegalite n'existe entre 
eux que par suite de la difference possible de leurs forces sur mer, 
tandis que, en cas de guerre entre un pays maritime et un autre qui 
ne Pest pas, si Pon autorise la saisie de la contrebande dirigee vers un 
pays neutre qui separe ce dernier de la mer, on ne maintient la possi- 
bilite de la saisie que pour le pays maritime tandis qu'elle est impos- 
sible pour Pautre. Meme en ecartant la theorie du voyage continu en 
pareil cas, il n'en restera pas moins que le pays non maritime souffrira 
d'une inegalite facheuse, soit parce que les transports par terre sont 
plus onereux et parfois plus longs, soit parce qu'il se heurtera sou- 
vent au mauvais vouloir ou aux scrupules des pays neutres dont le 
territoire le separe de la mer et qui pourront entraver le passage a 
leur frontiere des objets de contrebande; du moins cette inegalite 



100 CONTINUOUS VOYAGE. 

vient-elle d'un fait ineluctable, de la situation topographique du bel- 
ligerant, et il est inadmissible qu'on l'aggrave par une prctenduc fic- 
tion juridique, la continuity <le voyage qui aboutit a une veritable 
injustice." (Revue ( i cnc rale de Droit International Public, 1900, 
p. 810. ) 

Other cases involving destination of cargo. — The effect of 
destination on the liability of goods is very important, us 
is seen in the case of the Peterhoff, in 1866 (5 Wallace 
Supreme Court Reports, 28): 

And contraband merchandise is subject to a different rule in respect 
to ulterior destination than that which applies to merchandise not 
contraband. The latter is liable to capture only when a violation of 
blockade is intended; the former when destined to the hostile coun- 
try or to the actual military or naval use of the enemy, whether block- 
aded or not. The trade of neutrals with belligerents in articles not 
contraband is absolutely free unless interrupted by blockade; the con- 
veyance by neutrals to belligerents of contraband articles is always 
unlawful, and such articles may always be seized during transit by sea. 
Hence, while articles not contraband might be sent to Matamoras, and 
beyond to the rebel region, where the communications were not inter- 
rupted by blockade, articles of a contraband character, destined in fact 
to a State in rebellion or for the use of the rebel military forces, were 
liable to capture though primarily destined to Matamoras. 

The appeal of the shippers on the Springbok to the 
British Government led to an investigation. Earl Russell 
decided that there was not sufficient reason to interfere, as 
the evidence seemed to show — 

That the cargo of the Springbok, containing a considerable portion 
of contraband, was never really and bona fide destined for Nassau, but 
was either destined merely to call there or to be immediately trans- 
shipped after its arrival there without breaking bulk and without any 
previous incorporation into the common stock of that colony, and then 
to proceed to its real destination, being a blockaded port. (Parlia- 
mentary Papers, Misc. No. 1 (1900).) 

The case of the Dutch vessel Doel/wyk has given rise to 
discussion. This case involves the application of the doc- 
trine of continuous voyage to a vessel bound to a port in 
a neutral territory, which port was the natural port of 
entry to a countiy which had no seacoast. 

The Doehoyk was captured on August 8, 1896, by the 
Italian cruiser Etna at a point in the Red Sea about 10 
miles off the French port of Djibouti. There was a state 



CASE OF DOELWYK. 101 

of war between Italy and Abyssinia. The cargo consisted 
mainly of arms and munitions of war. The seizure of the 
DoeVwyk was upon the high seas. The immediate destina- 
tion seemed to be a neutral port from which transporta- 
tion to the belligerent territory would be easy. The cargo 
was mainly contraband. 

The rule of the Italian code for the merchant marine in 
Article 215 a provides that — 

Neutral vessels having a cargo in part or wholly contraband bound 
for the enemy country shall be captured and brought into a home port, 
where the ship and contraband merchandise will be confiscated and 
the other merchandise be subject to the disposition of the owners. 

Various technical questions in regard to the declaration 
of war and the conclusion of peace were raised, but the de- 
cision of the prize court condemned the vessel and contra- 
band cargo; but the'decision was not carried out because 
of the conclusion of peace. The decision, however, admits 
the doctrine of continuous voyage, even when land trans- 
portation over neutral territory must take place before the 
contraband reaches its hostile destination. (For text of 
decision see Gazetta ufficiale, December 15, 1896.) 

The second stage of transportation, from the neutral 
port to the enemy, in the case of the Springholc was from 
a neutral port to the enemy b} T water, and in the case of 
the DoeLwyh b} r land. 

Both cases sustained the doctrine of continuous voyage. 
Both decisions have received much criticism. 

The general principle is that contraband is liable to seiz- 
ure when destined for the enem}^. The question of desti- 
nation therefore becomes a vital one. The doctrine of 
continuous voyage is an attempt to set up a real prospec- 
tive destination in face of an immediate apparent destina- 
tion. This doctrine may apply to both ship and cargo or 
to cargo alone. 

As applied to the ship it is an attempt, to bring by judi- 



«Art. 215. "Le navi neutrali criche in tutto od in parte digeneri di 
contrabando di guerra dirette ad un paese nemico, saranno catturate e 
condotte in uno dei porti dello Stato dose la nave e la merce di contra- 
bando saranno confiscate, e le altre mercanzie lasciate a disposizione 
dei proprietarii. " 



102 * nNTINUOUS VOVAi.K. 

ciaJ action the consequences of a voyage from a neutral to 
a belligerent port to bear on a voyage between neutral 
ports. The guilt attaching to the voyage to the belliger- 
ent port is cast back on the voyage to a neutral port. It 
is an attempt to punish an intent which is not always cap- 
able of proof. 

The United States had in ls»>t; set forth principles which 
formed a precedent for some of these later cases. This 
case introduced also the question of destination by over- 
land transportation from the port at which the goods were 
to be landed as a factor in determining the treatment of 
the goods before reaching the port. In the case of the 
Peterhojf 'mention was made of the application of the same 
principles set forth in the case of the Bermuda. Of this 
Chief Justice Chase, delivering the opinion of the Court, 
say - : 

There is an obvious and broad line of distinction between the a 
The Bermuda and her cargo were condemned because engaged in a 
voyage ostensibly for a neutral, but in reality, either directly or by 
substitution of another vessel, for a blockaded port. The PeterJmrf' was 
l-'-tined for a neutral port with no ulterior destination for the ship, 
or none by sea for the cargo to any blockaded place. In the case of 
the Bermuda, the cargo destined primarily for Nassau could not reach 
its ulterior destination without violating the blockade of the rebel 
ports, in the case before us the cargo, destined primarily for Mata- 
moras, could reach an ulterior destination in Texas without violating 
any blockade at all. 

We must Bay, therefore, that trade between London and Matarnoras, 
even with intent to supply, from Matamoras, goods to Texas, violated 
no blockade, and can not be declared unlawful. 

Trade with a neutral port in immediate proximity to the territory 
of one belligerent, is certainly very inconvenient to the other. Such 
trade, with unrestricted inland commerce between such a port and 
the enemy's territory, impairs undoubtedly, and very seriously im- 
pairs, the value of a blockade of the enemy's coast. But in cases 
such as that now in judgment, we administer the public law of nations 
and are not at liberty to inquire what is for the particular advantage 
or disadvantge of our own or another country. We must follow the 
lights of reason and the lessons of the masters of international juris- 
prudence. 

Later in the same case, speaking of the contraband 

goods on board the Pelerfayff, the Chief Justice says: 

It is true that even these goods, if really intended for sale in the 
market of Matamoras, would he free of liability, for contraband may 



REGULATIONS AS TO DESTINATION. 103 

be transported by neutrals to a neutral port, if intended to make part 
of its general stock in trade. But there is nothing in the case which 
tends to convince us that such was their real destination, while all 
the circumstances indicate that these articles, at least, were destined 
for the use of the rebel forces then occupying Brownsville, and other 
places in the vicinity. (5 Wallace, Supreme Court Reports, 28.) 

Rules and regulations as to destination. — A committee of 
the Institute of International Law reported on the matter 
of continuous voyages in 1896. This committee included 
Lord Reay, Messrs. Barclay, Holland, and Westlake from 
England, who naturally represented the English point of 
view. While there was some opposition to the admission 
of the doctrine, and some desired that the status of con- 
traband be admitted only when goods were bound for an 
immediate hostile destination, yet the vote of the Institute 
was for the recognition of the principle that the established 
final destination was the determining factor. 

The rule is as follows: 

La destination pour l'ennemi est presumee lorsque le transport va 
a l'un de ses ports, o'u bien a un port neutre qui, d'apres des preuves 
evidentes et de fait incontestable, n'estqu'une etape pour l'ennemi, 
comme but final de la meme operation commerciale. (Annuaire de 
PInstitut de Droit International, 1896, p. 231.) 

The Japanese regulations, of March 7, 1904, relating to 
capture at sea, provide: 

Art. 15. The general rule shall be that the destination of a ship is 
the destination of her cargo. 

Art. 16. In the case of a ship, the destination of which is not the 
enemy's territory, should an intermediate port at which she calls 
during her voyage be the enemy's territory, or should there be a pre- 
sumption that she is sailing to meet a ship of war or other ship of the 
enemy, her destination shall be held to be the enemy's territory. 

Art. 17. In the case of a ship, the destination of which is not the 
enemy's territory, whether she calls at that destination and discharges 
cargo or not, if there is reason to believe that the cargo in question is 
being conveyed to the enemy's territory, her voyage shall be regarded 
as a continuous voyage, and her destination shall be held to have 
been, from the commencement, the enemy's territory. 

Conclusion. — The change in the means and methods of 
transportation has made new regulations necessaiy. With 
the increased opportunity for easy and quick intercourse 
between the enemy and neutral ports has come a corre- 



104 CONTINUOUS VOYAGE. 

sponding danger to the other belligerent. Against this 
danger he must have an increased ability to protect him- 
self. There ma}' be a case in which a maritime state is at 
war with a state having no seaport. The regular port of 
entrance to the inland state may be within neutral territory. 
With this state there is no war, therefore the port is not 
subject to blockade, and the transportation of supplies in 
this manner can not be interrupted by blockade. The sup- 
plies can not be classed as contraband if the destination of 
the vessel is to determine the destination of the cargo. 
Under the strict interpretation of the old rules no pressure 
could be put on the inland state by cutting off supplies of 
warlike material thus transported. It is obvious that such 
a condition would be unjust and would deprive the bellig- 
erent of the right to prevent trade in contraband destined 
for his enemy. The interposition of an ostensible neutral 
destination might be possible in many other instances, 
even when both belligerent states were maritime states. 
In the case of the war with the inland state, it is claimed 
there would be no more than the exercise of a war right 
in visiting and searching and sending in for adjudication 
by a prize court vessels carrying cargo in fact destined 
for the enemy if taken outside neutral jurisdiction. Simi- 
larlv in cases where the hostilities might be between mari- 
time states, it is only reasonable to look to the actual des- 
tination of the contra) >and goods. In such cases the proof 
of hostile destination should be reasonable and not simply 
a remote inference. 

It may be said that the doctrine of continuous voyages, 
as set forth in the cases consequent upon the civil war, is 
a considerable extension of the doctrine as understood be- 
fore that time. In some instances the decisions seem to 
have followed the lines of policy rather than legal prece- 
dent or reasoning. 

As shown above, the American position has been widely 
criticised and condemned. Many of the best authorities 
have been thoroughly opposed to the American view. 
These authorities represent practically all states. It 
should be noted, however, that in some instances the criti- 
cism is not so much directed toward the principle in- 



CONCLUSIONS. 105 

volved as toward the application of the principle without 
abundant proof. Even Gessner, while vigorously oppos- 
ing the Springbok decision, admits that the question is 
really one of actual destination of the cargo for enemy 
use. He maintains that seizure is warranted in case hos- 
tile destination of the cargo is clearly established, even 
though the articles are in transitu to a neutral port which 
may be merely an intermediate stopping place from which 
the contraband will be forwarded to a hostile destination. 
He also admits that a hostile destination might be evident 
if a belligerent fleet were in a neutral port. 

It has sometimes been stated that the application of the 
doctrine of continuous voyage limits the freedom of neu- 
tral commerce. The trade in contraband is undertaken in 
time of war particularly because of the exceptional profits. 
The profits of successful trade in contraband articles at 
such a time are exceptional because the possession of such 
articles by the one belligerent gives him an advantage 
over the other belligerent which he would not otherwise 
have. For this advantage he is willing to pay a war price. 
The neutral furnishing him this advantage should not be 
permitted to act with impunity, nor is it reasonable that 
the other belligerent should be required to permit such 
action. The whole transaction would be contrary to the 
spirit of the laws of neutrality and would simply serve to 
mask an unneutral act as a formally legitimate transaction. 
There is no reason to regard a voyage as more legitimate 
because made more circuitously. The number of stop- 
ping places does not necessarily change the ultimate des- 
tination of a vessel nor the number of transshipments the 
destination of its cargo. 

The name under which the various aspects of this matter 
have been usually treated has served to undul} T obscure 
the essential questions. These are such as: Is the destina- 
tion of the vessel a blockaded port, even though stopping 
at a neutral port on the voyage ? Is the destination of the 
cargo a blockaded port ? If the cargo is contraband is it 
destined for the enemy even though directed toward a 
neutral port? The destination of vessel or cargo is the 
fact that determines its treatment. 



106 CONTINUOUS VOYAGE. 

It seems hardly possible that valid objection can be 
raised against this position, which has become more and 
more recognized. It is not necessary to stretch the 
ancient opinions or practices to coyer new conditions. 

In reply to the question, "What position should be as- 
sumed on the doctrine of continuous voyage?" it may be 
properly maintained that the doctrine, when clearly defined, 
should prevail. This means that the vessel and cargo may 
be captured wherever such vessel and cargo may be found 
outside of neutral jurisdiction, in case there is ample evi- 
dence of destination to a blockaded port and that the inter- 
position of a neutral port of call does not, whatever acts 
ma} T there be performed, change the destination. This 
also means the treatment of the cargo is to be determined 
by its actual destination at the time of visit. It makes no 
difference whether a cargo destined for the enemy is car- 
ried on a final stage of its journey by overland or over-sea 
transportation, the destination of the cargo is the essential 
fact, not the means by which it may reach its destination. 
Of course, the belligerent is always liable for any seizures 
which may be made of vessels and cargoes having innocent 
destinations, and for improper seizures damages must be 
paid. Ample evidence would therefore be necessary to 
justify seizure. 

Regulation. — -As it has been shown from precedent, 
practice, regulations, and rules that the destination is the 
essential fact in determining the treatment of vessel and 
cargo, the regulation in regard to the doctrine of contin- 
uous voyage should particularly cover this point. A ves- 
sel and cargo is liable to capture if it has for its destina- 
tion a blockaded port, a besieged place, the fleet of the 
enemy, or similar belligerent destination. Outside of neu- 
tral jurisdiction contraband goods belonging to or destined 
for the enemy's military forces are liable to capture even 
though the vessel carrying the goods may be bound for a 
neutral port. 

The regulation may then be briefly stated as follows: 

The actual destination of vessels or goods will determine their treat- 
ment on the seas outside of neutral jurisdiction. 



Topic VI. 
Should the Declaration of Paris, 1856, be revised. 

CONCLUSION. 

The Declaration of Paris, 1856, should be revised. a 

DISCUSSION AND NOTES. 

Recognition of rights of those engaged in maritime com- 
merce. — Neutrality 7 , as now understood, was practically un- 
known in the Middle Ages. Grotius, in 1625, had only a 
vague idea of this status. Trade had, however, very early 
brought about a recognition of the rights of those engaged 
in commerce. Distinctions were made according to the 
nature of the goods and the nationality of the vessel car- 
rying the goods. 

The States of northern Europe gradually inclined toward 
the principle of u free ships free goods," which was enun- 
ciated in the treaty of Utrecht in 1713, Aix-la-Chapelle, 
1748, and supported in the armed neutrality of 1780 and 
of 1800. Other nations opposed, and practice and profes- 
sion varied with the times. Man} T discussions on the status 
of private property at sea took place in the early days of 
the United States. 

The principle of "free ships, free goods," except con- 
traband of war, has been widely inserted in United States 
treaties— Algiers, 1815, 1816; Bolivia, 1858; Brazil, 1828; 
Colombia (New Granada), 1846; Dominican Republic, 1867; 
Ecuador, 1839; France, 1778; Guatemala, 1849; Haiti, 
1864; Italy, 1871; Mexico, 1831, and many others. At 
the present time the principle is inserted in treaties in 

«For the binding force of this Declaration see notes on Protocol 
No. 24, p. 110. 

107 



108 DECLARATION OF PARTS, 1856. 

force with Bolivia, 1858; Brazil, L828; Colombia, 1846; 
Haiti, 1864; Italy, L871; Peru, L856; Prussia. L785; Russia. 
L854; Sweden and Norway, L783. 

The position of Great Britain and France in 185-1 was 
such as to give great weight to any declaration which 
might be made by these states. Their attitude toward 
the treatment of neutral property at sea and toward pri- 
vateering before this time had not been the same. It was 
necessary, however, that in regard to affairs in southeast- 
ern Europe they act together. Discussions in regard to 
policy of maritime warfare took place, and they gradually 
approached an agreement upon the treatment of neutral 
property, privateering, and blockade, which prepared the 
way for the declaration of Paris in 1856. 

The British declaration, with reference to neutrals and 
letters of marque, March 28, 1854, and the French declara- 
tion were practically the same: 

Her Majesty the Queen of the United Kingdom of ( Jreat Britain and 
Ireland, having been compelled to take up arms in support of an ally, 
is desirous of rendering the war as little onerous as possible to the 
powers with whom she remains at peace. 

To preserve the commerce of neutrals from all unnecessary obstruc- 
tion Her Majesty is willing, for the present, to waive a part of the 
belligerent rights appertaining to her by the law of nations. 

It is impossible for Her Majesty to forego the exercise of her right 
of seizing articles contraband of war and of preventing neutrals from 
bearing the enemy's dispatches, and she must maintain the right of a 
belligerent to prevent neutrals from breaking any effective blockade 
which may be established with an adequate force against the enemy's 
forts, harbors, or coasts. 

But Her Majesty will waive the right of seizing enemy's property 
laden on board a neutral vessel unless it be contraband of war. 

It is not Her Majesty's intention to claim the confiscation of neutral 
property, not being contraband of war, found on board enemy's ships, 
and Her Majesty further declares that being anxious to lessen as 
much as possible the evils of war and to restrict its operations to the 
regularly organized forces of the country it is not her present inten- 
tion to issue letters of marque for the commissioning of privateers. 
Westminster, March 28, 1854. (46 State Papers, p. 36.) 

The Declaration of Paris, l*-~>6. — The rights which 
France and Great Britain had thus waived by the concur- 
rent declarations of March 28-29, 1854, naturally became 
the subject of negotiation at the close of the war. At the 



THE DECLARATION. 109 

conference of Paris in 1856 these matters were brought 
forward and advanced measures were urged by the French 
representatives. There resulted the enunciation of the 
set of rules known as the declaration of Paris of 1856. 

The Declaration of Paris as given by Hertslet, " Map of 
Europe by Treat}- " (ii, p. 1282), is as follows: 

The Plenipotentaries who signed the Treaty of Paris of the 30th of 
March, 1856 (No. 264), assembled in Conference, — Considering: 

That Maritime Law, in time of War, has long been the subject of 
deplorable disputes; 

That the uncertainty of the law and of the duties in such a matter, 
gives rise to differences of opinion between Neutrals and Belligerents 
which may occasion serious difficulties, and even conflicts; 

That it is consequently advantageous to establish a uniform doctrine 
on so important a point; 

That the Plenipotentaries assembled in Congress at Paris cannot 
better respond to the intentions by which their Governments are ani- 
mated, than by seeking to introduce into international relations fixed 
principles in this respect; 

The above-mentioned Plenipotentaries, being duly authorized, re- 
solved to concert among themselves as to the means of attaining this 
object; and, having come to an agreement, have adopted the follow- 
ing solemn Declaration : 

PRIVATEERING. 

1. Privateering is, and remains abolished. 

NEUTRAL FLAG. 

2. The Neutral Flag covers Enemy's Goods, with the exception of 
Contraband of War. 

NEUTRAL GOODS. 

3. Neutral Goods with the exception of Contraband of War, are not 
liable to capture under Enemy's Flag. 

BLOCKADES. 

4. Blockades, in order to be binding, must be effective, that is to 
nay, maintained by a force sufficient really to prevent access to the 
coast of the enemy. 

The Governments of the Undersigned Plenipotentaries engage to 
bring the present Declaration to the knowledge of the States which 
have not taken part in the Congress of Paris, and to invite them to 
accede to it. 

Convinced that the maxims which they now proclaim cannot but 
be received with gratitude by the whole world, the undersigned 
Plenipotentaries doubt not that the efforts of their Governments to 
obtain the general adoption thereof, will Decrowned with full success. 



110 DECLARATION OF PARIS, 1856. 

The present Declaration is not and shall not be binding, except 
between those Powers who have acceded, or shall accede, to it. 
Done at Paris, the 16th of April, 1856. 

To this declaration all important States adhered except 
Mexico, Spain, and the United States. Spain and Mexico 
agreed, except to the abolition of privateering. The 
United States desired the exemption of all private property 
from seizure. 

Protocol No. %4- — I n addition to the Declaration of 
Paris of April 16, 1856, there was a protocol numbered 
24 containing the following: 

On the proposition of Count Walewski, and recognizing that it is for 
the general interest to maintain the indivisibility of the four principles 
mentioned in the declaration signed this day, the plenipotentiaries 
agree that the powers which shall have signed it, or which shall have 
acceded to it, can not hereafter enter into any arrangement in regard 
to the application of the right of neutrals in time of war, which does 
not at the same time rest on the four principles which are the object 
of the said declaration. 

By the above agreement the powers are bound. As 
Count Walewski said in a letter to Count de Sartiges in 
May, 1856: 

The plenipotentiaries assembled in the congress of Paris have come 
to an agreement on the terms of a declaration intended to settle the 
principles of maritime law in so much as it concerns neutrals during 
war. Herewith I have the honor to transmit to you a copy of that 
act, which fully meets the tendencies of our epoch, and at once puts 
an end to the useless calamities which a custom equally reprobated by 
reason and by humanity, superadded to those which fatally result 
from a state of war. 

The congress have not overlooked the fact that their work, in order 
that it may prove complete, must secure the assent of all the maritime 
powers, since such governments only as shall have acceded to the 
arrangement can be mutually bound by it, On this score we attach 
peculiar value to the concurrence of the United States, that will not 
consent, we confidently trust, to hold off from a concert of action which 
defines a new and essential progress in international relations. 

The determination of the congress of Paris defines the object which 
it is intended to attain. The clashing constructions given to the rights 
of neutrals have, up to the last year, proved a source of deplorable 
conflicts, whilst privateering inflicted on the commerce and navigation 
of nonbelligerent states an injury so much the more grievious as it 
gave room for the most calamitous excesses. 



ATTITUDE OF UNITED STATES. Ill 

These, Count, are the events which, for our part, we are happy in 
striving to repel, and we feel convinced that the concurrence of the 
United States will not be withheld in a question every way worthy of 
the philanthropic spirit of the American people; a question which at 
once, and in a high degree, concerns the development and the security 
of commercial transactions. 

The plenipotentiaries sent to the congress have, as you may see in 
portocol No. 24, bound themselves, in the name of their respective 
governments, to enter, for the future, into no arrangement on the 
application of maritime law in time of war without stipulating for a 
strict observance of the four points resolved by the declaration. The 
concurrence which we solicit at the hands of those governments which 
were not represented in the Paris conferences can, consequently, apply 
to those principles only laid down in said declaration, and which are 
indivisible. (Senate Ex. Doc, 34th Cong., 1st Sess., No. 104, p. 2.) 

Attitude of the United States. — The attitude of the 
United States was thus expressed in President Pierce's 
message of December 4, 1854: 

The proposition to enter into engagements to forego a resort to pri- 
vateers, in case this country should be forced into a war with a great 
naval power, is not entitled to more favorable consideration than would 
be a proposition to agree not to accept the services of volunteers for 
operations on land. When the honor or rights of our country require 
it to assume a hostile attitude it confidently relies upon the patriotism 
of its citizens, not ordinarily devoted to the military profession, to 
augment the Army and Navy, so as to make them fully adequate to the 
emergency which calls them into action. The proposal to surrender 
the right to employ privateers is professedly founded upon the principle 
that private property of unoffending noncombatants, though enemies, 
should be exempt from the ravages of war; but the proposed surrender 
goes but little way in carrying out that principle, which equally 
requires that such private property should not be seized or molested 
by national ships of war. Should the leading powers of Europe con- 
cur in proposing, as a rule of international law, to exempt private 
property upon the ocean from seizure by public armed cruisers as 
w T ell as by privateers, the United States will readily meet them upon 
that broad ground. 

The United States Government wished to extend the 
provision of the Declaration of Paris, saying: 

The injuries likely to result from surrendering the dominion of the 
seas to one or a few nations which have powerful navies arise mainly 
from the practice of subjecting private property on the ocean to seizure 
by belligerents. Justice and humanity demand that this practice 
should be abandoned, and that the rule in relation to such property on 
land should be extended to it when found upon the high seas, 



112 DECLARATION OF PARIS, 1856. 

The President therefore proposes to add to the first proposition in 
the "declaration" of the congress at Paris the following words: "And 

that the private property of the subject or citizens of a belligerent on 
the high seas shall be exempted from seizure by public armed vessels 
of the other belligerent, except it be contraband." Thus amended, 
the Government of the United States will adopt it, together with the 
other three principles contained in that "declaration." 

I am directed to communicate the approval of the President to the 
second, third, and fourth propositions, independently of the first, 
should the amendment be unacceptable. The amendment is com- 
mended by so many powerful considerations, and the principle which 
calls for it has so long had the emphatic sanction of all enlightened 
nations in military operations on land, that the President is reluctant 
to believe it will meet with any serious opposition. Without the pro- 
posed modification of the first principle, he can not convince himself 
that it would be wise or safe to change the existing law in regard to 
the right of privateering. (Senate Ex. Doc, 34th Cong., 1st sess., No. 
104, p. 13. ) 

It was well understood, as shown by the discussions, that 
the principles set forth in the Declaration of Paris were ad- 
vanced opinions. Protocol No. 22 of the session of April 
8, 1856, relates that— 

M. le Comte YValewski propose au Congres de terminer son ceuvre 
par un declaration qui constituerait un progres notable dans le droit 
international, et qui serait accueillie par le monde entier avec un sen- 
timent de vive reconnaissance. 

Le Congres de Westphalie, ajou.te-t-il, a consacre la liberte de con- 
science, le Congres de Vienne 1' abolition de la Traite des noirs et la 
liberte de la navigation des rleuves. 

II serait vraiment digne du Congres de Paris de poser les bases d'un 
droit maritime en temps de guerre, en ce qui concerne les neutres. 
Les 4 principes suivants atteindraient completement ce but: 

1. Abolition de la course; 

2. Le pavilion neutre couvre la marchandise ennemie, excepte la 
contrebande de guerre; 

3. La marchandise neutre, excepte la contrebandede guerre, n'est 
pas saisissable meme sous pavilion ennemi; 

4. Les blocus ne sont obligatoires qu'autant qu'ils sont effectifs. 

Ce serait certes la un beau resultat auquel aucun de nous ne saurait 
etre indifferent. 

The Declaration of Paris certainly does not meet with 
that general approval which its promoters had anticipated, 
and as time passes it becomes more and more in need of 
revision. As Duboc says: 



ABOLITION OF PRIVATEERING. 113 

La Declaration de Paris n'etablit done, a tout prendre, qu'un regime 
precaire, non sans danger pour les belligerants, non sans peril pourles 
neutres. Aussi beaucoup parmi ses partisans et panni sas adversaires 
pensent-ils qu'elle n'est las definitive. Tandis que ceux-ci demandent 
qu'on la denonce, ceux-la, pretendent qu'on la complete. Les pre- 
miers estiment qu'on aresserre les droits des belligerants dans des lim- 
ites trops restreintes, les autres, qu'on leur accorde encore des libertes 
excessives. Ces derniers pretendent parfaire le droit maritime et as- 
surer definitivement la securite des neutres en supprimant toute con- 
fiscation de la propriete ennemie. (Le Droit de la Guerre Maritime, 
p. 71.) 

There are many differences of opinion in regard to the 
phraseology of the Declaration of Paris. Some prefer a 
more explicit definition, others would retain the general 
terms. (Perels, Seerecht, section 49, I.) Thonier in a 
recent work says: 

Malgre le progres immense qu'elle a realise, en faisant passer de la 
doctrine dans la pratique la liberte du commerce neutre, la declaration 
fe Paris presente cependant quelques lacunes. Elle n'a pas ose aller 
jusqu'au bout dans la voie des re formes liberates et declarer, ainsi que 
le proposaient les Etats-Unis, l'inviolabilite de la propridte privee sur 
la mer. 

Elle est meme inferieure a la Declaration russe de 1780, en ce qui re- 
garde le blocus, parl'absence de prescriptions concernantle rapproch- 
ement des forces bloquantes, ce qui permet les blocus por croisiere. 

Enfin, elle garde le silence au sujet de la contrebande de guerre, 
dont il y aurait eu si grand interet & donner une definition precise et 
enumeration. (De la Notion de Contreband de Guerre, p. 39.) 

1. " Privateering is and remains abolished." — It might 
with good reason perhaps be contended that in the first 
place the term "declaration" is not properly applicable 
to the action taken by the plenipotentiaries on April 16, 
1856, and known as the "Declaration of Paris." 

The provisions of the so-called " declaration " are, how- 
ever, of great importance. 

The plenipotentiaries, according to the terms of the Dec- 
laration, consider "that maritime law in time of war has 
long been the subject of deplorable disputes." To avoid 
some of the disputed points they hope to establish "a 
uniform doctrine" and "having come to an agreement" 
have adopted the "solemn declaration." 

A serious objection was at the time raised against this Dec- 
laration, to the effect that of the plenipotentiaries who 

16843—06 8 



114 DECLARATION OF PARIS, 1856. 

signed it, some had do authorization to act in the matter, but 
as their action was never disclaimed it must be held to be 
binding. It is held in Great Britain that so far as the 
Declaration itself is concerned it has never been properly 
authorized. 

The obvious intent of the first clause of the Declaration 
of Paris, u Privateering is and remains abolished," was 
that from the date of its adoption war should be confined 
to the regularly commissioned vessels built for hostile pur- 
poses. Debates and discussions of the rule show that it 
was thus understood by many officials in its early days. 
Doubtless the opposition to the rule would have been much 
less marked in the United States if it had been understood 
to mean merely that from its adoption the use of private 
vessels for belligerent purposes shall be allowed only when 
they are under responsible control of one of the belligerents. 

T. G. Bowles, writing in 1878 after there had been much 
discussion on the subject, shows that the effect of the first 
clause of the Declaration of Paris abolishing privateering- 
is open to differences of interpretation. Of the general 
provisions of the Declaration he says: 

The effect of them upon Great Britain is without doubt and beyond 
question greater than upon any other power, because Great Britain, 
being the principal maritime power in the world, must feel more than, 
any other the effects of any change in the laws of maritime warfare. 
And the fact that Great Britain has shown herself before the change 
was made able to resist the whole of Europe in arms, and to come 
victorious out of the struggle by the very aid of the very principles 
now declared to be abrogated and reversed, must lead us to conclude 
in limine that the change made is one fraught with especial disad- 
vantage to her. Let us, however, examine the changes themselves 
and their effects. 

I. "Privateering is and remains abolished," that is to say, is abol- 
ished for Great Britain whenever she is at war with any other States 
than the United States or Spain; but not when she is at war with 
either of those two. The effect of this is to deprive Great Britain of 
the services of volunteers at sea, and to preclude her from employing 
in warlike operations either the vessels or the men of her vast mer- 
cantile marine; for a privateer is but a private vessel commissioned by 
the State. She loses thus not only an offensive but also a defensive 
weapon; for privateers do not only capture enemy's vessels, but also 
tveapture those of their own nation; and they are to the State navy a 



CRITICISM OF CLAUSE ON PRIVATEERING. 115 

most valuable auxiliary, without which an amount of power propor- 
tioned to the size of the mercantile marine of the State remains unem- 
ployed in time of war. She loses the power of withdrawing a 
considerable number of merchant vessels from exposure to the enemy 
as unarmed merchantmen by turning them into offensive weapons as 
armed cruisers, and thus at once diminishing the number of vessels 
liable to be captured and increasing the number of those able to cap- 
ture. She loses one of the best schools for the formation of daring and 
adventurous sailors, and with it those traditions of prize money won 
in conflict, which have always been found the most urgent incentive 
to daring and adventurous men. (Maritime Warfare, p. 83.) 

It may be safely said that prior to the time of the Dec- 
laration the first clause, viz, u Privateering is and remains 
abolished," would have been regarded as a proposition 
very liable to stir up unnecessary "deplorable disputes." 
Privateering had been an accepted means of warfare which 
was supposed to give to a state an opportunity to enlarge 
its navy . In regard to privateering, Secretary Marcy, in 
a letter of Julv 28, 1856, to Count Sartiges, said that for 
those powers acceding to the Declaration of Paris it would 
be necessaiy to "surrender a principle of maritime law 
which has never been contested — the right to emplo}^ pri- 
vateers in time of war." The first clause of the Declaration 
can not be properly regarded as one whose introduction 
removed disputes. 

It has been the object of much criticism. In the first 
place, the Declaration is a convention binding signatory 
powers only. Many of the leading men in the states 
which became parties to the Declaration were opposed to 
this provision. Some maintained that it was not suffi- 
ciently definite, but would give rise to action in effect like 
privateering under another name, or so masked as to avoid 
condemnation under the letter of the law. Such critics 
also maintained that what was needed was an agreement as 
to the use of private or quasi-private vessels in time of 
war, with such regulations as would avoid the evdls of pri- 
vateering. The truth of this position as to the need of 
definite regulations for the use of such vessels in time of 
war has become more and more evident since 1856, and the 
status of voluntary or auxiliary fleets is at present a mat- 



116 DECLARATION OF PARTS, 1836. 

ter of uncertainty, involving grave consequences. Just 
what was really abolished and remained abolished under 
the first clause of the Declaration has become an increas- 
ingly important question. 

The United States were willing to accede to the Declara- 
tion when it was thought that it would work to the advan- 
tage of the North against the South, at the opening of the 
civil war. 

The French Academy had discussed the question of aboli- 
tion of privateering in 1860, and the practice of privateer- 
ing was ably defended. It was not denied that privateering 
should be regulated, for this was generally admitted. It 
was not (mite clear what the word " privateering ? ' in- 
cluded. The discussion as to the definition of the word 
was renewed through the action of the Prussian Govern- 
ment in 18T0. 

It is: necessary that the provision in regard to privateer- 
ing be merged in the question of the regulation of the 
status of private or quasi-private ships which in time of 
war are introduced into the military forces of the bellig- 
erent. 

Mr. F. K. Stark, in his careful study on the "Abolition 
of privateering/' says: 

The Declaration of Paris is truly, as Mr. Marcy said, a halfway 
measure. It is inchoate, unfinished, and, it can not be denied, some- 
what faulty, as the first steps of all great reforms have been. But to 
call it an epoch-making event or a red-letter day in the calendar of 
the law of nations would be superfluous. Perhaps that which is t<> 
come — the abolition of all capture of private property at sea, includ- 
ing the abolition of commercial blockades — is easier than that which 
has already been accomplished. In international law, as in other 
things, it is the first step that costs (p. 159). 

Attitude of United States on abolition of privateering. 
On the clause in regard to privateering. Mr. Marcy. in his 
letter to Count Sartiges, makes various comments, among 
which is the following: 

If the principle of capturing private property on the ocean and con- 
demning it as prize of war be given up, that property would, and of 
right ought to be, as secure from molestation by public armed vessels 
as by privateers; but if that principle be adhered to, it would be 



ATTITUDE OF UNITED STATES ON PRIVATEERING. 117 

worse than useless to attempt to confine the exercise of the right of 
capture to any particular description of the public force of the bellig- 
erents. There is no sound principle by which such a distinction can 
be sustained, no capacity which could trace a definite line of separa- 
tion proposed to be made, and no proper tribunal to which a disputed 
question on that subject could be referred for adjustment. The pre- 
tense that tne distinction may be supported upon the ground that 
ships not belonging permanently to a regular navy are more likely to 
disregard the rights of neutrals than those which do belong to such a 
navy is not well sustained by modern experience. If it be urged 
that a participation in the prizes is calculated to stimulate cupidity, 
that, as a peculiar objection, is removed by the fact that the same pas- 
sion is addressed by the distribution of prize money among the officers 
and crews of ships of a regular navy. Every nation which authorizes 
privateers is as responsible for their conduct as it is for that of its 
navy, and will, as a matter of prudence, take proper precaution and 
security against abuses. 

But if such a distinction were to be attempted, it would be very 
difficult, if not impracticable, to define the particular class of the pub- 
lic maritime force which should be regarded as privateers. "Deplora- 
ble disputes," more in number and more difficult of adjustment, w r ould 
arise from an attempt to discriminate between privateers and public 
armed ships. 

If such a discrimination were attempted, every nation would have 
an undoubted right to declare what vessels should constitute its navy 
and what should be requisite to give them the character of public 
armed ships. These are matters which could not be safely or pru- 
dently left to the determination or supervision of any foreign pow T er, 
yet the decision of such controversies would naturally fall into the 
hands of predominant naval powers, which would have the ability to 
enforce their judgments. It can not be offensive to urge weaker 
powers to avoid as far as possible such an arbitrament and to main- 
tain with firmness every existing barrier against encroachments from 
such a quarter. 

No nation which has a due sense of self-respect will allow any other, 
belligerent or neutral, to determine the character of the force which 
it may deem proper to use in prosecuting hostilities; nor will it act 
wisely if it voluntarily surrenders the right to resort to any means 
sanctioned by international law which, under any circumstances, may 
be advantageously used for defense or aggression. (Senate Ex. Doc. 
No. 104, 34th Cong., 1st. sess., p. 9.) 

2. Free ships, free goods. — The second clause of the 
Declaration of Paris is: 

The neutral flag covers enemy's goods with the exception of con- 
traband of war. 



118 DECLARATION OF PARIS, 1856. 

This phraseology has given rise to certain misconcep- 
tions particularly because some have inferred that contra- 
band of war might be thus affirmed of enemy goods. The 
probable intent of the clause was to the effect that — 

The neutral flag covers enemy's goods, with the exception of such 
as would, if neutral, be contraband of war. 

If, however, all innocent private property at sea is to 
be exempt from capture, whether neutral or enemy, the 
phraseology is correct in the main, because in such event 
the doctrine of contraband must be extended to enenry as 
well as to neutral property. 

The phraseology also introduces the question of destina- 
tion, which is essential in contraband. Neutral goods 
bound for a neutral port, even though consisting of arms 
and ammunition, are not contraband. Would enemy 
goods of similar nature bound for a neutral port be ex- 
empt from capture under a strict interpretation of the 
second clause of the declaration ? 

It may be justl} T held that if the belligerent is to be 
bound by the second clause of the Declaration, viz, "The 
neutral flag covers enemy's goods, with the exception of 
contraband of waiy' the neutral shall be held to make 
plain to the belligerent that the flag is truly neutral. 

A somewhat full presentation of the effect of this Declara- 
tion upon establishing a definition of contraband of war 
and of the significance of Protocol No. 2i is given by Chief 
Justice Berkley in the ease of the Osaka Sh<>*> n K<i!.s],<t 
versus the owners of the steamship Prometheus in 1904: 

In my opinion the expression "contraband of war" has a well- 
known and accepted meaning among the civilized commercial powers 
of the world. If that were not so we should not, as we do, find that 
expression used without definition in solemn treaties between the 
powers. The expression "contraband of war" is used without any 
definition of its meaning in the Treaty of Paris of the 16th April, 1856. 
The inference from that fact is, to my mind, irresistible that there 
was no definition needed, because the expression had the same defi- 
nite meaning in the minds of all the plenipotentiaries of the powers 
parties to that treaty. 

The Treaty of Paris, to which Russia is a party and to which she 
still adheres, commences with the following preamble: "Considering 



FREE SHIPS, FREE GOODS. 119 

that maritime law in time of war has long been the subject of deplora- 
ble disputes, that uncertainty of the law and of the duties in such a 
matter gives rise to differences of opinion between neutrals and 
belligerents which may occasion serious difficulties, and even conflicts, 
that it is consequently advantageous to establish a uniform doctrine 
on so important a point; that the plenipotentiaries assemble in Con- 
gress at Paris can not better respond to the intention by which their 
Governments are animated than by seeking to introduce into inter- 
national relations fixed principles in this respect." Then immediately 
follows this declaration: "The above-mentioned plenipotentiaries, 
being duly authorized, resolved to concert among themselves as to 
the means of attaining this object, and haying come to an agreement 
have adopted the following solemn declaration: 

(1) Privateering is and remains abolished 

(2) The neutral flag covers enemy's goods, with the exception of 
contraband of war. 

(3) Neutral goods, with the exception of contraband of war, are not 
liable to capture under the enemy's flag. 

(4) Blockades in order to be binding must be effective — that is to 
say, maintained by a force sufficient really to prevent access to the 
coast of the enemy. 

I draw special attention to the fact that the expression "contra- 
band of war" is twice used in this declaration without being in any 
way defined. This declaration was designed to give effect to the 
opinion of the plenipotentiaries expressed in the preamble, viz, that 
it was to the advantage of the civilized world to establish a uniform 
doctrine on the subject of maritime law in time of war, and with that 
object in view to introduce certain "fixed principles." At the same 
sitting of the plenipotentiaries the following resolution was adopted 
(Protocol No. 24): "On the proposition of Count Walewski, and 
recognizing that it is for the general interest to maintain the indivisi- 
bility of the four principles mentioned in the declaration signed this 
day, the plenipotentiaries agree that the powers which shall have 
signed it, or which shall have acceded to it, can not hereafter enter 
into any arrangement in regard to the application of the right of 
neutrals in time of war which does not, at the same time, rest on the 
four principles which are the object of the said declaration." 

It will be observed that by this Protocol the plenipotentiaries of Rus- 
sia bind that Power not hereafter to adopt any attitude toward neutrals 
in time of war which does not rest upon the four principles enunciated 
in the declaration. This Protocol has an important bearing upon the 
contention at the Bar that Russia as an independent sovereign State 
possesses, as a concomitant to the right to make war, the right to 
declare what shall or shall not be considered contraband of war. 

I dwell here upon the fact that the expression "contraband of war" 
occurs twice in the declaraticn in the treaty of Paris ; that the expres- 
sions " privateering " and " blockade " occur each once; and that there 



120 DECLARATION OF PARIS, 1856. 

is in that declaration no definition of the meaning ot" any of those 
expressions. Why was there this omission to define these expressions? 
Was it not because they each had in the minds of the plenipoten- 
tiaries of the Powers a recognized meaning at the time when the treaty 
was signed? And because the expression "contraband of war" no 
more needed definition than the expressions "blockade" or "priva- 
teering" did. What, then, was the meaning which it must fairly be 
assumed the plenipotentiaries attached to the expression "contraband 
of war," as used by them in the Treaty of Paris? It seems to me that 
the plenipotentiaries had in their minds the meaning which at that 
time attached to the expression "contraband of war" resulting from 
the decisions of the courts of law of the nations of Europe and Amer- 
ica; principally, indeed, the decisions in the English courts on cases 
arising during the Napoleonic war. What, then, is the result of those 
decisions? What meaning has been thereby attached to the expres- 
sion "contraband of war?" The result has been to attach to that 
expression the following twofold meaning: (1) Absolute contraband 
of war, which includes everything useful for war only; (2) that 
which is conditional contraband of war, which includes all which, 
though useful for both peace and war, becomes contraband if destined 
for the purposes of war, excluding from the meaning of contraband of 
war such things as are useful for the purposes of peace only. "Pro- 
visions," consequently, come within the definition of conditional con- 
traband only if and when destined for the enemy's forces; otherwise 
they are excluded from the definition. That is, in my opinion, the 
true meaning to be attached to the expression "contraband of war," 
and that is the sense which, in my opinion, that expression bears on 
a true construction of the declaration of the plenipotentiaries who 
signed the Treaty of Paris of 1856. 

The Supreme Court decision in the case of the Peterhoff' 
(5 Wallace Supreme Court Reports, 28) gives an opinion 
on contraband: 

The classification of goods as contraband or not contraband has 
much perplexed text writers and jurists. A strictly accurate and sat- 
isfactory classification is perhaps impracticable, but that which is best 
supported by American and English decisions may be said to divide 
all merchandise into three classes. Of these classes, the first consists 
of articles manufactured and primarily and ordinarily used for mili- 
tary purposes in time of war; the second, of articles which may be 
and are used for purposes of war or peace, according to circumstances, 
and the third, of articles exclusively used for peaceful purposes. 
Lawrence's Wheat., 772, 776, note; the Commercen, 1 AVheat., 382; 
Dana, Wheat , 629, note; Pars. Mar. Law, 93, 94. Merchandise of 
the first class, destined to a belligerent country or places occupied by 
the army or navy of a belligerent, is always contraband; merchandise 
of the second class is contraband only when actually destined to the 



FREE GOODS ALWAYS FREE. 121 

military or naval use of a belligerent; while merchandise of the third 
class is not contraband at all, though liable to seizure and condemna- 
tion for violation of the blockade or siege. 

2. Free goods always free. — The third clause of the Dec- 
laration of Paris is: 

Neutral goods with the exception of contraband of war are not 
liable to capture under enemy's flag. 

Such matters as the destruction of belligerent vessels 
having on board neutral cargo may give rise to complica- 
tions under the third clause of the Declaration. While 
by this clause the goods are not liable to capture the} 7 
may under necessit}- of war be subject to severe treatment. 

Hall says of this matter : 

In 1872 the French prize court gave judgment in a case, arising out 
of the war of 1870-71, in which the neutral owners of property on board 
two German ships, the Ludwlg and the Vorwarte, which had been 
destroyed instead of being brought into port, claimed restitution in 
value. It was decided that though "under the terms of the Declara- 
tion of Paris neutral goods on board of an enemy's vessel can not be 
seized, it only follows that the neutral who has embarked his goods 
on such vessel has a right to restitution of his merchandise, or in case 
of sale to payment of the sum for which it may have been sold ; and 
that the Declaration does not import that an indemnity can be 
demanded for injury which may have been caused to him either by a 
legally good capture of the ship or ' by acts of war which may have 
accompanied or followed the capture;" in the particular case "the 
destruction of the ships with their cargoes having taken place under 
orders of the commander of the capturing ship, because, from the 
large number of prisoners on board, no part of the crew could be 
spared for the navigation of the prize, such destruction was an act of 
war, the propriety of wdiich the owners of the cargo could not call in 
question, and which barred all claim on their part to an indemnity." 

It is to be regretted that no limits w r ere set in this decision to the 
right of destroying neutral property embarked in an enemy's ship. 
That such property should be exposed to the consequences of neces- 
sary acts of war is only in accordance with principle, but to push the 
rights of a belligerent further is not easily justifiable, and might under 
some circumstances amount to an indirect repudiation of the Declara- 
tion of Paris. In the case, for example, of a state, the ships of which 
were largely engaged in carrying trade, a general order given by its 
enemy to destroy instead of bringing in for condemnation would 
amount to a prohibition addressed to neutrals to employ as carrier 
vessels, the right to use which was expressly conceded to them by the 
Declaration in question. It was undoubtedly intended bv that Decla- 



122 DECLARATION OF PARIS, 1856. 

ration that neutrals should be able to place their goods on board bel- 
ligerent vessels without as a rule incurring further risk, than that of loss 
of market and time, and it ought to be incumbent upon a captor who 
destroys such goods together with his enemy's vessel to prove to the 
satisfaction of the prize court, and not merely to allege, that he lias 
acted under the pressure of a real military necessity. (International 
law 5th ed. p. 717.) 

The reported acts of some of the vessels of Russia dur- 
ing the Russo-Japanese war also show that there is need of 
further provisions in the Declaration. 

4. Blockades.* — Mr. Marcy's opinion in regard to the 
fourth clause of the Declaration, the clause in regard to 
effective blockade, is one which has received frequent 
sanction. He said: 

The fourth principle contained in the "declaration," namely: 
"Blockades, in order to be binding, must be effective; that is to sa\ . 
maintained by a force sufficient really to prevent access to the coast of 
the enemy;"' can hardly be regarded as one falling within that class 
with which it was the object of the congress to interfere; for this rule 
has not for a long time been regarded as uncertain, or the cause of 
any "deplorable disputes." If there have been any disputes in 
regard to blockades, the uncertainty was about the facts, but not the 
law. Those nations which have resorted to what are appropriately 
denominated "paper blockades," have rarely, if ever, undertaken 
afterwards to justify their conduct upon principle; but have generally 
admitted the illegality of the practice, and indemnified the injured 
parties. What is to be adjudged "a force sufficient really to prevent 
access to a coast of the enemy," has often been a severely contested 
question; and certainly the declaration, which merely reiterates a 
general undisputed maxim of maritime law, does nothing toward 
relieving the subject of blockade from that embarrasment. What 
force is requisite to constitute an effective blockade, remains as un- 
settled and as questionable as it was before the congress at Paris 
adopted the "declaration." (Senate Ex. Doc. 54th Cong., IstSess., 
No. 104, p. 6.) 

It is evident that the fourth clause in regard to blockade 
needs further clarifying from the fact that the British 
Admiralty Manual of Naval Prize Law adds after the 
clause of the Declaration of Paris the words, "Or, at an} r 
rate, to create evident danger to ships attempting ingress 
or egress." The general statement in regard to valid 
blockade in the Manual is as follows: 

«See also International Law Situation, 1901, Xaval War College, 
pp. 166-175. 



BRITISH MANUAL ON EFFECTIVE BLOCKADE. 123 

VALID BLOCKADE. 

108. A Blockade to be valid must be confined to ports and coasts of 
the Enemy, but it may be instituted of one port, or of several ports, or 
of the whole seaboard of the Enemy. 

109. It maybe instituted to prevent ingress only ("Blockade in- 
wards"), or egress only ("Blockade outwards"), though it is gener- 
ally instituted to prevent both ingress and egress. 

110. A Blockade to be valid must be effective — that is to say, 
maintained by a force sufficient really to prevent access to the coast 
of the Enemy, or, at any rate, to create evident danger to ships attempt- 
ing ingress or egress. 

111. It is therefore the first duty of a Commander authorized to 
institute a Blockade so to dispose his Squadron as to bring about this 
result. There is then in existence a Blockade de facto. 

112. A Blockade, though thus validly instituted, ceases to exist if 
not effectually maintained. It w r ill accordingly cease to exist if the 
blockading force — 

1. Abandon its position, unless abandonment be merely temporary, 
or caused by stress of weather; or 

2. Be driven away by the Enemy; or 

3. Be negligent in its duties; or 

4. Be partial in the execution of its duties toward one ship rather 
than another, or toward the ships of one nation rather than those of 
another. 

113. Should, however, the Commander seize several Vessels at once 
and find himself unable to detain them all, it will not be an improper 
act of partiality, nor is it a relaxation of the Blockade if he releases 
some and detains the rest. ( P. 29. ) 

The doctrine of blockade was not the same among the 
powers signatories of the Declaration of Paris. The 
phrase " Maintained by a force sufficient really to prevent 
access to the coast of the enemy " would mean for France 
a force which would give notification of the existence of 
the blockade to each vessel appearing before the port. 
By Great Britain no such notification is deemed necessary. 
A general public notification is deemed sufficient. The 
amount and kind of force is also a matter of much differ- 
ence of opinion. Can a blockade be established by sinking- 
stones, vessels, or other obstructions in a cha'nnel ( Does 
a line of mines or torpedoes constitute a blockade under 
the definition of the Declaration of Paris? How far shall 
blockade by cruisers be admitted? What constitutes a 
sufficient number of cruisers to render a blockade effective ? 



124 DECLARATION OF PARIS, 1856. 

Many such questions have been discussed and varying 
answers have been given. It is easily seen that a different 
course will have to be pursued to render a blockade accord- 
ing to the French theory effective — i. e., when notification 
before a port is necessary — and to render a blockade accord- 
ing to the British theory effective — i. e., when only a 
general public notification is necessary. 

Some authorities have maintained that there should be 
before a blockaded port two lines of vessels, one of which 
should at a considerable distance from the port notify the 
approaching merchantman of the blockade and the second 
inner line should seize the merchantman if he then attempts 
to enter. Some have even maintained that in order that a 
blockade may be effective, the vessels of the blockading 
squadron should not be separated farther than the distance 
which the range of their guns would cover. Others main- 
tain that the question of effectiveness depends on the 
amount of commerce entering a given port, and that the 
blockading squadron should vary in number accordingly. 

What is hlockade? — Various schemes have been tried by 
which to obtain the results of blockade for the belligerents 
without all its consequences. 

For many years the doctrine of pacific blockade was held. 
Of late years this may be said to have been received with 
less favor. It was regarded as a means of constraint short 
of war. 

In connection with blockade, it should be further recog- 
nized that it is a war measure and that it applies only in 
time of war. 

It does not apply generally in time of domestic hostilities 
of the nature of insurgency even though a single State or 
even several States may have recognized the belligerency 
of the insurgent. If an actual state of war does not exist, 
blockade and its consequences is not admitted. Until the 
parent State recognizes the belligerency of the insurgent 
body, ci the scale on which hostilities are conducted by the 
insurgents must be considered." 



VENEZUELAN BLOCKADE, 1902. 125 

The position of the United States is stated in a letter of 
Secretar} 7 Hay of November 15, 1902. He says: 

Blockade of enemy ports is, in its strict sense, conceived to be a defi- 
nite act of an internationally responsible sovereign in the exercise of 
a right of belligerency. Its exercise involves the successive states of, 
first, proclamation by a sovereign state of the purpose to enforce a 
blockade from an announced date. Such proclamation is entitled to 
respect by other sovereigns conditionally on the blockade proving 
effective. Second, warning of vessels approaching the blockaded port 
under circumstances preventing their having previous actual or pre- 
sumptive knowledge of the international proclamation of blockade. 
Third, seizure of a vessel attempting to run the blockade. Fourth, 
adjudication of the question of good prize by a competent court of ad- 
miralty of the blockading sovereign. ( Recent Supreme Court Decisions 
and other Opinions and Precedents, U. S. Naval War College, 1904, 
p. 207. ) 

That there may be doubt as to what constitutes effective 
blockade may be seen in the replies to the Venezuelan 
decree of June 28, 1902/ The decree was as follows: 

The constitutional President of the United States of Venezuela 
decrees: 

Article 1. In consequence of the occupation of Ciudad Bolivar by 
insurrectionary forces, navigation in the waters of the Orinoco is pro- 
hibited, the extent of the coast line which embraces its mouths is 
blockaded, and the ports of Guira and Cano Colorado are closed to 
trade and navigation. 

Art. 2. The port of La Vela de Coro is likewise declared to be 
blockaded. 

Art. 3. The necessary naval forces shall be appointed to enforce the 
said blockade in a real and efficacious manner. 

Art. 4. The commanders of the ships appointed to carry out the 
blockade of the above-mentioned ports shall duly observe the ordi- 
nances relating to the corsairs, dated the 30th of March, 1882, now in 
force, and the following provisions: 

1. Ships which have been dispatched for the blockaded ports shall 
have the following terms, after the present decree has been communi- 
cated to their respective Governments, allowed them to enter: Steam- 
ships proceeding from Europe, one month; sailing vessels, two months; 
steamships proceeding from the United States, fifteen days; sailing 
vessels, one month; ships proceeding from the West Indies and Deme- 
rara, whether steamers or sailing vessels, shall have a term of ten days, 
with the exception of those proceeding from Trinidad and Grenada, 
which shall have but two days. 

2. Merchandise which is destined for any port within the line of 
blockade may, at the discretion of the owner, be disembarked at any 



126 DECLARATION OF PARIS, 1856. 

other established customs port on payment of the respective customs 
duties. 

3. On any vessel, proceeding from any of the places above men- 
tioned, reaching the line of blockade the commander of the nearest 
man-of-war shall communicate to him the order against crossing it, 
and in case he persist he shall be considered to wish to violate the 
blockade. 

ArtT. 5. The ministers of the interior, foreign affairs, finance, and 
war and marine are charged to see to the execution of this decree and 
to communicate it to all whom it may concern. 

Given, signed, sealed with the seal of the national executive and 
countersigned by the ministers of the interior, foreign affairs, finance, 
and war and marine, at the federal palace at Caracas, this 28th day of 
June, 1902, year 91 of the independence and 44 of the federation. 

ClPRlANO Castro. 

The United States minister, under date of September 7. 
1902, reported to Secretary Hay: 

Sir: I have the honor to inform you that I have learned that Ger- 
many and Great Britain based their refusal to recognize the blockade 
decreed by the Venezuela Government as effective on the assertion 
that the naval force of Venezuela is not sufficiently strong to render 
it effective. France confined her protest to Carupano and Cumana, 
stating that French ships had entered those ports without let or hin- 
drance. I decided that, as we have no special interests in the ports 
blockaded, and as they seem to me likely to be occupied and aban- 
doned from time to time by the revolutionists, it would be sufficient 
for me to simply remark to the minister for foreign affairs that we could 
not recognize as effective any blockade that we find to be ineffective. 
(U. S. Foreign Relations, 1902, pp. 1070, 1071.) 

In an extended correspondence with the French Gov- 
ernment the President of Venezuela tried to maintain that 
the blockade was effective if the vessels attempting to 
enter found it difficult and were in danger from Venezue- 
lan blockaders. He said the blockading fleet was in pro- 
portion to the ordinary commerce and that most of the 
ships were prevented from entering, but this was not re- 
garded as sufficient. It is not that most of the ships should 
be prevented, but that any ship should be in peril from 
attempting to enter the blockaded port. 

Several cases involving questions of efficiency of block- 
ade are briefly summarized in Atlay's edition of Wheaton's 
International Law: 

A question respecting the efficiency of a blockade arose during the 
last Turco-Russian war. Turkey proclaimed a blockade of the whole 



EFFECTIVE BLOCKADE. 127 

of the coasts of the Black Sea, from Trebizond to the mouth of the 
Danube, and maintained it by a force of cruisers in the Black Sea 
itself. This force prevented most of the trade with the Russian ports 
from being carried on, but, besides thin, the Porte stationed two cruis- 
ers in the Bosphorus, and any vessels which escaped the Black Sea 
Squadron were captured on arriving there and taken before the Prize 
Court sitting at Constantinople. A more complete and efficient block- 
ade could not possibly be devised ; nevertheless it was argued for the 
owners of prizes that, being neutral vessels (mostly Greek), as soon as 
they had escaped the Black Sea Squadron they were free and were no 
longer liable to capture. The Turkish Prize Court, however, con- 
demned the vessels. This case was peculiarly important from the fact 
that some of the foreign ambassadors at the Porte had intimated that 
if these vessels were not condemned the blockade would not be recog- 
nized by other countries. To hold that these Greek vessels were not 
liable to be captured in the Bosphorus would have been tantamount 
to opening the general commerce of the Black Sea to Greece, and this 
would have immediately invalidated the whole blockade. 

The blockade of Formosa was notified by France in 1884. Great 
Britain protested, through its ambassador at Paris, alleging that the 
force at the disposal of the French admiral was insufficient. The block- 
ade was in consequence abandoned till the arrival of reenforcements. 

The blockade of insurgent Haitian ports proclaimed by Haiti in No- 
vember, 1888, having ceased to be effective in the July following, Lord 
Salisbury notified the Haitian Government that it could not longer 
be respected, and that British vessels entering or leaving ports in the 
possession of the insurgents must not be molested by the Government 
cruisers. (Sections 513 b, c, d.) 

The question as to what constitutes an effective blockade 
was raised in the case of the 01 hide Rodriguez in 1898. 
In an opinion handed down by Chief Justice Fuller in 1899 
(174 IT. S., 510), the position of the court, with the grounds 
therefor, was stated as follows: 

To be binding, the blockade must be known, and the blockading 
force must be present; but is there any rule of law determining that 
the presence of a particular force is essential in order to render a 
blockade effective? We do not think so, but, on the contrary, that 
the test is whether the blockade is practically effective, and that that 
is a question, though a mixed one, more of fact than of law. 

The fourth maxim of the Declaration of Paris (Apr. 16, 1856), was: 
''Blockades, in order to be binding, must be effective; that is to say, 
maintained by a force sufficient really to prevent access to the coast 
of the enemy." Manifestly this broad definition was not intended to 
be literally applied. The object was to correct the abuse, in the early 
part of the century, of paper blockades, where extensive coasts were 
put under blockade by proclamation, without the presence of any 



128 DECLARATION OF PARIS, 1856. 

force, or an inadequate force; and the question of what might be 
sufficient force was necessarily left to be determined according to the 
particular circumstancj 

This was put by Lord RusBell, in his note to Mr. Mason of February 
10, 1861, thus: "The Declaration of Paris was in truth directed against 
what were once termed 'paper blockades:' that is, blockades not sus- 
tained by any actual force, or sustained by a notoriously inadequate 
naval force, such as an occasional appearance of a man-of-war in the 
offing, or the like. * * * The interpretation, therefore, placed by 
Her Majesty's Government on the Declaration was that a blockade, 
in order to be respected by neutrals, must be practically effective. 
* * * It is proper to add that the same view of the meaning and 
effect of the articles of the Declaration of Paris on the subject of 
blockades which is above explained was taken by the representative 
of the United States at the Court of St. James (Mr. Dallas) during the 
communications which passed between the two Governments some 
years before the present war with a view to the accession of the 
L T nited States to that Declaration." (Hall's Int. Law, paragraph 260, 
p. 730, note.) 

The quotations from the Parliamentary Debates of May, 1861, given 
by Mr. Dana in note 233 to the eighth edition of Wheaton on Interna- 
tional Law, afford interesting illustrations of what was considered the 
measure of effectiveness; and an extract is also there given from a 
note of the Department of Foreign Affairs of France of September, 1861, 
in which that is defined: " Forces sufficient to prevent the ports being 
approached without exposure to a certain danger." 

Later in the same case it is stated: 

As we hold that an effective blockade is a blockade so effective as 
to make it dangerous in fact for vessels to attempt to enter the block- 
aded port, it follows that the question of effectiveness is not controlled 
by the number of the blockading force. In other words, the position 
can not be maintained that one modern cruiser, though sufficient in 
fact, is not sufficient as matter of law. 

The definition of effective blockade was not sufficiently 
clear to all. Fauchille says: 

La definition du blocus donnee par le congres de Paris n'est pas 
aussi precise qu'elle aurait du etre. Sans doute, elle prohibe eertaine- 
ment le blocus fictif qu'on appelle blocus warpapier^ en vertu duquel, 
d'un trait de plume, un gouvernement met en etat de siege des ports 
et des cotes entieres: mais exclut-elle aussi formellement le blocus par 
croisiere? 

and later, 

Nous ne croyons point toutefois que cette declaration ait voulu pre- 
cist'ment autoriser les blocus par croisiere; elle ne les a pas desavoues 



EFFECTIVE BLOCKADE. 129 

expressement, elle les a desavoues d'une facon indirecte seulement. 
Si la premiere phrase est indecise et peut permettre a l'Angleterre, 
dont elle est l'ceuvre, de revenir a son ancienne pratique, la derniere 
phrase est au contrairie plus precise et se rapproche d'une definition 
exaete du bloeus effectif: En effet, il faut, d'apres elle, que Faeces du 
littoral ennemi soit interdit reellement, soit rendu impossible par les 
forces bloquantes; or dans le bloeus par croisiere ce n'est pas l'abord 
de la cote qui est defendu, mais des vaisseaux croisant a une grande 
distance du port bloque arretent les batiments qui s'y dirigent. 

Quoi qu'il en soit, nous ne pouvons approuver une definition qui 
prete ainsi a double sens, et nous appelons de tous nos vceux le jour 
ou les puissances, se depouillant enfin des idees d'interet personnel, 
donneront une definition claire et precise du bloeus effectif. (Du 
Bloeus Maritime, pp. 110, 111.) 

Wharton says in regard to blockades: 

A blockade to be effective need not be perfect. It is not necessary 
that the beleaguered port should be hermetically sealed. It is not 
enough to make the blockade ineffective that on some particularly 
stormy night a blockade runner slid through the blockading squadron. 
Nor is it enough that through some exceptional and rare negligence 
of the officers of one of the blockading vessels a blockade runner was 
allowed to pass when perfect vigilance could have arrested him. But 
if the blockade is not in the main effective — if it can be easily eluded — 
if escaping its toils is due not to casus or some rare and exceptional 
negligence, but to a general laxity or want of efficiency — then such 
blockade is not valid. (Commentaries American Law, section 233.) 

The United States has entered into several treaty agree- 
ments in regard to blockade. Among those still in force 
are the following: 

Article XIII of the treaty with Prussia, May 1, 1828, 
declares : 

Considering the remoteness of the respective countries of the two 
high contracting parties and the uncertainty resulting therefrom 
with respect to the various events which may take place, it is agreed 
that a merchant vessel belonging to either of them which may be 
bound to a port supposed at the time of its departure to be block- 
aded shall not, however, be captured or condemned for having 
attempted a first time to enter said port, unless it can be proved that 
said vessel could and ought to have learned during its voyage that 
the blockade of the place in question still continued. But all vessels 
which, after having been warned off once, shall, during the same voy- 
age, attempt a second time to enter the same blockaded port during 
the continuance of the said blockade, shall then subject themselves to 
be detained and condemned. 

16843—06 9 



130 DECLARATION OF PARIS, 1856. 

This article also occurs in the treaty with Sweden-Nor- 
way. July -L L827. 
The treaty with Italy of February 26, 1871, Article 

XIV. states: 

And whereas it frequently happens that vessels sail for a port or a 
place belonging to an onemy •without knowing that the same is 
besieged, blockaded, or invested, it is agreed that every vessel bo cir- 
cumstanced maybe turned away from such port or place, but shall 
not be detained, nor shall any part of her cargo, if not contraband of 
war. be confiscated, unless, after a warning of such blockade or invest- 
ment from an officer commanding a vessel of the blockading forces, 
by an indorsement of such officer on the papers of the vessel, mention- 
ing the date and the latitude and longitude where such indorsement 
was made, she shall again attempt to enter: but she shall be per- 
mitted to go to any other port or place she shall think proper. Nor 
shall any vessel of either that may have entered into such a port before 
the same was actually besieged, blockaded, or invested by the other 
be restrained from quitting such place with her cargo, nor. if found 
therein after the reduction and surrender, shall such vessel or her 
cargo be liable to confiscation, but they shall be restored to the own- 
ers thereof; and if any vessel having thus entered any port before 
the blockade took place, shall take on board a cargo after the block- 
ade be established, she shall be subject to being warned by the 
blockading forces to return to the port blockaded and discharge the 
said cargo, and if after receiving the said warning the vessel shall per- 
sist in going out with the cargo, she shall be liable to the same con- 
sequences as a vessel attempting to enter a blockaded port after being 
warned off by the blockading forces. 

This article, omitting " by an indorsement of such offi- 
cer on the papers of the vessel, mentioning the date and 
the latitude and longitude where such indorsement was 
made." appears in the treaty with Brazil of December 12, 
1828. 

Article 21 of the Japanese regulations relating to cap 
tare at sea of March 7. 1904, states that — 

Blockade is to close an enemy's port, bay, or coast with force, and 
is effective when the force is strong enough to threaten any vessels 
that attempt to go in or out of the blockaded port or bay or to approach 
the blockaded coast. 

Conclusion. — In regard to the question, "Should the 
provisions of the Declaration of Paris of 185b' be revised I " 
it may be said that the tirst clause, "Privateering is and 



DECLARATION SHOULD BE REVISED. 131 

remains abolished" should be maintained. Regulations 
should be made, however, for the control of vessels such as 
those of the auxiliary navy. 

In case regulations in regard to the exemption from cap- 
ture of private property at sea in time of war are adopted 
the second and third articles, "The neutral Hag covers 
enemy's goods, with the exception of contraband of war," 
and a Neutral goods, with the exception of contraband of 
war, are not liable to capture under enemy's flag," should 
be modified in such a manner as to coincide therewith. 

The fourth clause, " Blockades, in order to be binding, 
must be effective — that is to say, maintained by a suffi- 
cient force really to prevent access to the coast of the 
enem} T ," should receive new statement showing exactly 
what is meant and to what situations it applies, particularly 
what constitutes an effective blockade. 

Pacific blockades will not affect powers not parties to 
them. (International Law Situations, 1902, Situation VII, 
pp. 75-83.) 

In fine, the Declaration which is still binding on the sig- 
natory powers might well be subject to full consideration, 
and should before general acceptance be revised. 



Topic VII. 

A. At the convention at The Hague in 1899 three dec- 
larations were made as follows: 

1. To prohibit the launching of projectiles and explosives from bal- 
loons or by other similar new methods. 

2. To prohibit the use of projectiles, the only object of which is the 
diffusion of asphyxiating or deleterious gases. 

3. To prohibit the use of bullets which expand or flatten easily in 
the human body, such as bullets with a hard envelope, of which the 
envelope does not entirely cover the core, or is pierced with incisions. 

(1) The first of the above declarations was ratified for a 
period of tive } T ears by the United States. Should the 
prohibition be renewed? 

(2) Should the second declaration be adopted? 

(3) Should the third declaration be adopted? 

B. It was also voted that — 

The conference expresses the wish that the questions with regard to 
rifles and naval guns, as considered by it, may be studied by the Gov- 
ernments with the object of coming to an agreement respecting the 
employment of new types and calibers. 

What action should be taken upon this provision? 

C. It was also voted that — 

The conference expresses the wish that the proposal to settle the 
question of the bombardment of ports, towns, and villages by a naval 
force may be referred to a subsequent conference for consideration. 

What regulations should be made in regard to bombard- 
ment ? 

CONCLUSION. 

A. The following action should be taken on the three 
declarations of the convention at The Hague, 1899: 

(1) The contracting powers agree to prohibit, for a term 
of five years, the launching of projectiles and explosives 

132 



CONCLUSIONS AS TO DECLARATIONS. 133 

from free balloons, or by other new methods of similar 
nature. 

The present declaration is only binding on the contract- 
ing powers in case of war between two or more of them. 

It shall cease to be binding from the time when in a war 
between the contracting powers one of the belligerents is 
joined by a noncontracting power. 

(2) The nature and phrasing of the second declaration 
seems to be such as to make its adoption in the present 
form inexpedient. 

(3) The third declaration should be made to conform to 
the principle embodied in the Laws and Customs of War 
on Land. 

B. Discussion and study of the question of restriction 
upon invention and use of new types and calibers of guns 
subsequent to the conference in 1899 seems to show that 
such action would not necessarily lessen the burden of war, 
shorten its duration, or make it more humane. This being 
the opinion which seems to accord with the facts, it does 
not seem logical to impose any restriction, and such a lim- 
itation should not be adopted. 

C. The bombardment, by a naval force, of unfortified 
and undefended towns, villages, or buildings is forbidden, 
though such towns, villages, or buildings are liable to the 
damages incident to the destruction of military or naval 
establishments, public depots of munitions of war, or ves- 
sels of war in port, and such towns, villages, or buildings 
are liable to bombardment when reasonable requisitions 
for provisions and supplies at the time essential to the 
naval force are withheld, in which case due notice of bom- 
bardment shall be given. 

Steps should be taken to spare, as far as possible, edi- 
fices devoted to religion, art, science, and charit} T , hospi- 
tals and places where the sick and wounded are collected, 
provided the}^ are not used at the same time for military 
purposes. The besieged should indicate these buildings 
or places by some particular and visible signs, which should 
previously be notified to the assailants. 



134 THREE HAGUE DECLARATIONS. 

DISCUSSION AND NOTES. 

General. — Of the three declarations, the first received 
an unanimous affirmative vote. The second was opposed 
by Captain Mahan. representing the United States. The 
third was opposed by Great Britain and the United State-, 
while Portugal abstained from voting. 

History shows that it has been customary to put any 
new means of war under the ban for a time. At one time 
early in the twelfth century the Lateran Council de- 
nounced the crossbow. Later, those who used gun pow- 
der were denied quarter. The bayonet was looked upon 
as a barbarous instrument. Such means of warfare are 
no longer prohibited. 

The use of poisoned bullets or weapons, the use of small 
explosive bullets (less than 400 grammes), and the use of 
arms and projectiles which cause unnecessary suffering 
are. however, prohibited. 

The object of war is peace. The use of barbarous 
methods, the practice of treachery, and the unnecessary 
aggravation of suffering tends rather to prolong the war 
than to hasten peace. Instruments of war are not unlaw- 
ful because they entail suffering, but because the suffering 
entailed bears no proportionate relation to the attainment 
of the end of war. viz, the bringing of the enemy to terms 
of surrender. 

In Maine's International Law. being lectures delivered 
in 1887, there is a summary mentioning the attitude 
toward new inventions for warlike purposes. He says 
that — 

One of the most curious passages of the history of armament is the 
strong detestation which certain inventions of warlike implements 
have in all centuries provoked, and the repeated attempts to throw 
them out of use by denying quarter to the soldiers who use them. 
The most unpopular and detested of weapons was once the crossbow, 
which was really a very ingenious scientific invention. The crossbow- 
had an anathema put on it, in 1139, by the Lateran Council, which 
anathematized artem Mam mortifera et Deo odih'dem. The anathema 
was not without effect. Many princes ceased to give the crossbow to 
their soldiers, and it is said that our Richard I revived its use with 
the result that his death by a crossbow bolt was regarded by a great 
part of Europe as a judgment. It seems quite certain that the con- 



THE USE OF BALLOONS. 135 

demnation of the weapon by the Lateran Council had much to do with 
the continued English employment of the older weapon, the longbow, 
and thus the English successes in the war with France. But both 
crossbow and longbow were before long driven out of employment by 
the musket, which is in reality a smaller and much improved form of 
the cannon that at an earlier date were used against fortified walls. 
During two or three centuries all musketeers were most severely, and 
as we should now think most unjustly, treated. The Chevalier Bayard 
thanked God in his last days that he had ordered all musketeers who 
fell into his hands to be slain without mercy. He states expressly 
that he held the introduction of firearms to be an unfair innovation 
on the rules of lawful war. Red-hot shot was also at first objected to, 
but it was long doubtful whether infantry soldiers carrying the musket 
were entitled to quarter. Marshal Mont Luc, who has left Memoirs 
behind him, expressly declares that it was the usage of his day that 
no musketeer should be spared (p. 138). 

A (1). The use of balloons. — At The Hague in 1899 the 
following declaration was made: 

To prohibit the launching of projectiles and explosives from bal- 
loons or by other similar methods. 

This prohibition was adopted by the United States for a 
period of five years. The vote of the Hague committee 
was at first for perpetual prohibition of this method of 
conducting hostilities, but it was limited to five years. 

The use of balloons was by this declaration prohibited 
only in case of "launching of projectiles and explosives." 
It was admitted that it was allowed for certain purposes 
by Article 29 of the Second Convention, which, speaking 
of those who shall not be treated as spies, says: 

To this class belong likewise individuals sent in balloons to deliver 
dispatches and generally maintain communication between the various 
parts of an army or territory. 

This position in regard to balloons is a decided step in 
advance from that taken by Prussia in 1870. Bismarck 
maintained that an Englishman would properly be subject 
to arrest and trial by court-martial "because he had spied 
out and crossed our outposts and positions in a manner 
which was beyond the control of the outposts, possibly 
with a view to make use of the information thus gained 
to our prejudice. " Though persons captured from balloons 
were severely treated and imprisoned, none were executed 



136 THKEE HAGUE DECLARATIONS. 

as spies, though some were condemned to death. (Parlia- 
mentary Papers, LXXII, 1871.) 

Such persons as go in balloons lack the essential elements 
of spies, i. e., " acting secretly or under false pretenses." 
Persons in balloons can not, if they would, act secretly or 
under false pretenses. They are in full view. To such 
persons is now conceded the status of prisoners of war, 
and the making of observations by means of balloons is as 
legitimate as any other warlike operation. 

There arise, however, certain questions in regard to the 
control of the use of balloons because of the increasing 
development of this means of locomotion. 

It is reported that of the 64 balloons sent up from Paris 
in 1870-71 two were lost at sea, five were taken b} T the 
enemy, and the remainder accomplished in some degree 
their mission. Such a result of the use of balloons would 
warrant the continuance of their use. 

The use of balloons has has been most commonly for 
purposes of observation and the carriage of dispatches. 
With the further development of wireless telegraphy, it 
may be possible that the usefulness of balloons may be 
extended as means for transmitting and receiving messages. 
It is also stated that the movements of submarine boats 
may be detected at a greater depth from the balloon. 
Whatever may be the fact in such cases, it is practically 
provided for in the regulation adopted for warfare on land, 
which admits such uses and regards the persons engaged 
in such operations, if captured, as prisoners of war, and 
not as spies. In fact, such a use of balloons is regarded 
as a legitimate act of war. 

The sole question, then, is in regard to the use of 
balloons or similar methods as means for the launching of 
projectiles and explosives. 

Hollsin The Peace Conference at The Hague (p. 95) sa}^s 
of the action of the committee having the matter in charge: 

On the subject of balloons the subcommittee first voted a perpetual 
prohibition of their use, or that of similar new machines for throwing 
projectiles or explosives. In the full committee, on motion of Captain 
Crozier, the prohibition was unanimously limited to cover a period of 
five vears onlv. The action taken was for humanitarian reasons 



LAUNCHING PROJECTILES FROM BALLOONS. 137 

alone, and was founded upon the opinion that balloons, as they now 
exist, form so uncertain a means of injury that they can not be used 
with accuracy. The persons or objects injured by throwing explosive- 
may be entirely disconnected from the conflict, and such that their 
injury or destruction would be of no practical advantage to the party 
making use of the machines. The limitation of the prohibition to five 
years' duration preserves liberty of action under such changed cir- 
cumstances as may be produced by the progress of invention. 

In speaking of the proposition to restrict the period 
which the regulation in regard to the launching of projec- 
tiles from balloons should run, Captain Crozier said that 
he had originally voted for the regulation without limita- 
tion of time. He showed that the subcommittee had man- 
ifested a spirit of tolerance in regard to those methods 
tending to increase the efficacy of the means of carrying 
on war and a spirit of restricting of those methods which, 
without being necessary from the point of view of efficacy, 
seem to cause unnecessaiy suffering. No limit had been im- 
posed on the perfecting of artillery, -powder, explosives, 
and guns. Explosive bullets had been prohibited alto- 
gether, as had the launching of projectiles from balloons. 
His general conclusion was that it was the purpose to pre- 
serve efficacy at the risk even of increasing suffering if 
that was indispensable. 

Captain Crozier admitted that the restriction on explo- 
sive bullets was a limitation which would be in the direc- 
tion of a lessening of the suffering of war. It seemed 
difficult to him to justify, b/v humanitarian motives, the 
employment of balloons for the launching of projectiles 
and explosives. The lack of practical knowledge in regard 
to the possible use of balloons and the possible develop- 
ment of control through new inventions made uncertain the 
consequences of the use of this agency in war. It might 
be so developed as to make it the deciding factor in a crit- 
ical moment of a conflict by concentrating the destruction 
of life and property in such a wa} T as to bring to an end a 
struggle that otherwise must be long continued. (Confer- 
ence Internationale de la Paix, 2 e Partie, p. 75.) The possi- 
bilities of the development may be such as to make its use 
for launching projectiles and explosives a most economic 
and humane means of warfare. If all or many of the 



138 THREE HAGUE DECLARATIONS. 

possibilities which some think reside in tin 4 balloon are 
realized, it certainly should not be a prohibited means of 
warfare,- because it may lessen, rather than increase, the 
sufferings incident to war. The use of the balloon x or 
other means of aerial navigation for launching projectiles 
or explosives should therefore not be permanently pro- 
hibited. 

Many of the objections which have been urged against 
balloon warfare have been urged against torpedoes, mines. 
etc. It is admitted also that at the present time balloons 
are not fully dirigible. Their motion is uncertain. The 
point at which projectiles or explosives launched from a 
balloon may fall is uncertain. Injury might be done to non- 
combatants when aimed at combatants. The limited weight 
of the projectile or explosives which a balloon might carry 
is not a serious practical objection that might not be 
overcome. Yet there are too many objections to allow 
the unrestricted use of balloons and other similar new 
methods of launching projectiles and explosives until 
the means of aerial navigation are under reasonable con- 
trol, and only when under control should they be thus 
used. This is a demand which neutrals and noncombatants 
may properly make. This is a demand which on or- 
dinary grounds of humanity may properly be made, 
because only when under control can the military 
objects sought in the use of such means be attained. 
How long it will be before the means of aerial navi- 
gation are developed to a degree which will give a 
reasonable control can not be known at present. That 
they may sometime be thus developed is not improbable. 
This being the case, while there should not be a perma- 
nent prohibition, there should be a tempo raiy prohibi- 
tion of the ''launching of projectiles and explosives from 
balloons and other similar new methods." 

The length of time for which the prohibition should run 
may conveniently be made live years, as this gives a rea- 
sonable period for development. 

This will also give time for the development of rules 
for the government of the use of this agency. Such rules 
have already received consideration and discussion, and 



PROJECTILES DIFFUSING GASES. 139 

could well be left to an internationl committee for formu- 
lation. (Fauchille, Le Domaine Aerien et le Regime 
Juridique des Aerostats, Paris, 1901; Annuaire de lTnsti- 
tut de Droit International, 1902, p. 19; Xys. Droit Inter- 
national, I, p. 523.) 

The objections raised against the use of balloons apply 
■ to*" free balloons "and not to "anchored balloons." The 
"anchored balloons" are under control. These are not, 
therefore, sufoiect to the restrictions applicable to the 
"free balloon," but remain as it were a part of the terri- 
tory of the belligerent controlling the place of anchorage. 
The limitation to free balloons should be made in the rule. 

In the discussion of this topic by the Naval War Col- 
lege in 1903 the conclusion was reached that — 



.- 



The reasons that applied at the time of the peace conference are 
equally valid at the present time, therefore the article * * * from 
present indications should be renewed. (International Law Discus- 
sions, 1903, p. 23. ) 

To this may well be added "for a term of five years from 
the date of said agreement." 

Conclusion. — The article would, according to the above 
discussions, read as follows: 

The contracting powers agree to prohibit, for a term of live years, 
the launching of projectiles and explosives from free balloons or by 
other new methods of similar nature. 

The present declaration is only binding on the contracting powers 
in case of war between two or more of them. 

It shall cease to be binding from the time when in a war between 
the contracting powers one of the belligerents is joined by a noncon- 
tracting power. 

A (2) Projectiles diffusing gases, — The discussion of the 
prohibition of the use of projectiles, the only object of 
which is the diffusion of asphyxiating or deleterious gases, 
showed support of the proposition on various grounds. 
The proposition was first brought forward by Captain 
Scheme in behalf of the Russian Government. The form 
of the proposition was at first to generally prohibit pro- 
jectiles which diffuse asphyxiating and deleterious gases, 
but was subsequently made to apply not to projectiles 
which might on explosion produce gases as an incident of 



140 THREE HAGUE DECLARATIONS. 

explosion but to those projectiles only whose sole object 
was the diffusion of asphyxiating und deleterious gases. 
Captain Mahan, early in the discussion, maintained that 
such a means erf warfare was more humane than such a 
means as dismembered or lacerated the body; that the use 
of such projectiles involved no cruelty or bad faith, and 
that their use should be a legitimate means of warfare. 
Others maintained that the use of such projectiles would 
poison the air in a manner analogous to the poisoning of 
the water supply which had long been prohibited as a 
means of carrying on war. Some maintained that such a 
method of carrying on war would be barbarous and more 
cruel than the use of bullets. It was generally admitted 
that no projectile of the nature prohibited had thus far 
been tested, nor was it certain that a projectile whose sole 
use would be the diffusion of gases would be produced. 
Doubtless some of the discussion was aimed against the 
use of lyddite, which does not seem to have justitied the 
expectations raised in regard to its use. Nor is its use 
solely for the diffusion of gases, but more strictly as an 
explosive in recent wars, and the diffusion of gases has 
been simply incidental to the explosion. 

In his report on the conference at The Hague, Captain 
Mahan states the position which he took on the use of 
projectiles the sole purpose of which is the diffusion of 
asphyxiating and deleterious gases. He says: 

As a certain disposition lias been observed to attach odium to the 
view adopted by this commission in this matter, it seems proper to 
state, fully ami explicitly, tor the information of the Government, 
that on the first occasion of the subject arising in subcommittee, and 
subsequently at various times in full committee and before the con- 
ference* the United States naval delegate did not cast his vote silently, 
but gave the reasons, which at his demand were inserted in the reports 
of the day's proceedings. These reasons were, briefly: 1. That no 
shell emitting such gases is as yet in practical use, or has undergone 
adequate experiment, consequently a vote taken now would be taken 
in ignorance of the facts as to whether the results would be of a decisive 
character, or whether injury in excess of that necessary to attain the 
end of warfare — the immediate disabling of the enemy — would be 
inflicted. 2. That the reproach of cruelty and perfidy, addressed 
against these supposed shells, was equally uttered formerly against 
firearms and torpedoes, both of which are now employed without 



EXPLOSIVE OR EXPANDING BULLETS. 141 

scruple. Until we knew the effects of such asphyxiating shells there 
was no saying whether they would be more or less merciful than mis- 
siles now permitted. 3. That it was illogical and not demonstrably 
humane to be tender about asphyxiating men with gas, when all were 
prepared to admit that it was allowable to blow the bottom out of an 
ironclad at midnight, throwing four or five hundred into the sea, to be 
choked by water, with scarcely the remotest chance to escape. If, 
and when, a shell emitting asphyxiating gases alone has been succes- 
fully produced, then, and not before, men will be able to vote intelli- 
gently on the subject. (Holls, Peace Conference at The Hague, p. 
494.) 

The proposition aiming to prohibit the employment of 
projectiles the only object of which is the diffusion of as- 
phyxiating or deleterious gases was made with a view to 
avert unnecessary suffering in war. The uncertaint}^ of 
the results of the use of such means was sufficient to con- 
demn it in the e} T es of many, yet the possibilities of the 
development of projectiles having this diffusion of gases 
as a partial object is not limited, as the declaration is aimed 
at projectiles whose sole object is the diffusion of gases. 
It is held that this prohibition would not apply to lvddite 
and certain other new explosives because the diffusion 
of gases is incidental. The prohibition hardly seems as 
was contended by the United States representatives suf- 
ficiently comprehensive. It may even happen as has been 
suggested that this prohibition may lead to the exclusion 
of some humane means of warfare. 

The nature and phrasing of the second declaration seems 
to be such as to make its adoption in the present form in- 
expedient. 

A (3) Explosive bullets. — The third declaration u to pro- 
hibit the use of bullets which expand or flatten easily in the 
human bod y, such as bullets with a hard envelope, of which 
the envelope does not entirely cover the core, or is pierced 
with incisions," was directed particular^ against the "dum- 
dum" bullet which had been used by British soldiers. 
When the above prohibition was discussed the British rep- 
resentative stated that in a war with a civilized State a sol- 
dier hit by a small projectile would be sufficiently wounded 
to check his advance. He claimed that it was otherwise 



142 THREE HAGUE DECLARATIONS. 

with the savage who in war even though he had been hit 
two or three times. Sir John Ardagh said: 

The savage continue- to advance, and before one has had time to 
explain to him that it is in flagrant violation of the decisions of the 
conference at The Hague he cuts off one's head. 

It was from such reasons that the British delegate con- 
tended that the projectile should be of such a character as 
to accomplish its purpose, i. e., to render the enemy hors 
<l< combat. Some maintained that the use of a bullet 
which expanded or flattened on entering the human body 
w as practically the use of an explosive bullet in contra- 
vention of the declaration of St. Petersburg of 1808. It 
was maintained that the argument for the "dumdum" 
bullet was. in effect, an argument for a larger bid let merely. 

As Captain Crozier, of the United States commission, 
reports: 

This subject gave rise to more active debate and to more decided 
differences of view than any other considered by the subcommittee. 
A formula was adopted as follows: "The use of bullets which expand 
or flatten easily in the human body, such as jacketed bullets of which 
the jacket does not entirely cover the core or has incisions in it, 
should be forbidden." 

When this subject came up in the full committee the British repre- 
sentative. Maj. Gen. Sir John Ardagh, made a declaration of the 
position of his Government on the subject, in which he described their 
"dumdum" bullet as one having a very small portion of the jacket 
removed from the point so as to leave uncovered a portion of the core 
of about the size of a pin head. He said that this bullet did not ex- 
pand in such manner as to produce wounds of exceptional cruelty, but 
that on the contrary the wounds produced by it were in general less 
severe than those produced by the Snider, Martini-Henry, and other 
rifles of the period immediately preceding that of the adoption of the 
present small bore. He ascribed the bad reputation of the "dum- 
dum" bullet to some experiments made at Tubingen, in Germany, 
with a bullet from the forward part of which the jacket to a distance 
of more than a diameter was removed. The wounds produced by 
this bullet were of a frightful character, and the bullets being gener- 
ally supposed to be similar to "dumdum" in construction had prob- 
ably given rise to the unfounded prejudice against the latter. 

The United States representative here for the first time took part 
in the discussion, advocating the abandonment of the attempt to 
cover the principle of prohibition of bullets producing unnecessarily 
cruel wounds by the specification of details of construction of the bul- 
let, and proposing the following formula: 



AMERICAN POSITION ON EXPANDING BULLETS. 143 

"The use of bullets which inflict wounds of useless cruelty, such as 
explosive bullets, and in general every kind of bullet which exceeds 
the limit necessary for placing a man immediately hors de combat, 
should be forbidden." 

The committee, however, adhered to the original propo- 
sition, which it voted without acting on the substitute 
submitted. 

The action of the committee having left in an unsatisfactory state 
the record, which thus stated that the United States had pronounced 
against a proposition of humanitarian intent, without indicating that 
our Government not only stood ready to support, but also proposed 
by its representative a formula which was believed to meet the require- 
ments of humanity much better than the one adopted by the com- 
mittee, the United States delegate, with the approval of the commis- 
sion and in its name, proposed to the conference at its next full session 
the above-mentioned formula as an amendment to the one submitted 
to the conference by the first committee. In presenting the amend- 
ment he stated the objections to the committee's proposition to be the 
following: First, that it forbade the use of expanding bullets, not- 
withstanding the possibility that they might be made to expand in 
such regular manner as to assume simply the form of a larger caliber, 
which property it might be necessary to take advantage of, if it should 
in the future be found desirable to adopt a musket of very much 
smaller caliber than any now actually in use. Second, that by thus 
prohibiting what might be the most humane method of increasing the 
shocking power of a bullet and limiting the prohibition to expanding 
and flattening bullets, it might lead to the adoption of one of much 
more cruel character than that prohibited. Third, that it condemned 
by designed implication, without the introduction of any evidence 
against it, the use of a bullet actually employed by the army of a 
civilized nation. 

I was careful not to defend this bullet, of which I stated that I had 
no knowledge other than that derived from the representations of the 
delegate of the power using it, and also to state that the United States 
had no intention of using any bullet of the prohibited class, being 
entirely satisfied with the one now employed, which is of the same 
class as are those in common use. 

The original proposition was, however, maintained by the confer- 
ence, the only negative votes being those of Great Britain and the 
United States. (Holls. Peace Conference at The Hague, p. 511.) 

Professor Holland, in speaking on "Some lessons of the 

peace conference" (Fortnightly Review, vol. 72 (1899), p. 

956), says: 

Any general renunciation either of particular means of weakening an 
enemy, e. g., by capture of private property at sea, or of the employ- 
ment against him of particular kinds of weapons, e. g. , the "dumdum " 



144 THREE HAGUE EECLARATIONS. 

bullets, or any other novelty likely to be suggested by the progress of 
invention, is sure to meet with opposition, on the ground that such 
renunciation would unfairly affect nations which are compelled l>y 
their circumstances to rely especially on one or other of the practices 
which it is proposed thus to stigmatize. Nothing can be effectually 
prohibited which does not either cause suffering beyond the necessi- 
ties of the case or conflict too seriously with the interests of neutrals. 

Conclusion. — The third declaration prohibits " the use of 
bullets which expand or flatten easily in the human body, 
such as bullets with a hard envelope, of which the envel- 
ope does not entirely cover the core, or is pierced by inci- 
sions." The specific nature of this prohibition was pointed 
out by the representatives of the United States at The 
Hague conference. It is not certain that another form of 
bullet producing similar results, but not of the prohibited 
class, ma}' not be invented. This at most is only one of a 
general category of bullets which it is well to prohibit, i. e., 
the class which produces unnecessary suffering. It would 
therefore seem better to aim at the general category in the 
prohibition rather than at one variety of bullet. 

It would seem expedient that this third declaration should 
not be adopted. At the same time, some regulation should 
be adopted. 

Many of the objections which apply to the second dec- 
laration in regard to asphyxiating gases apply to the expan- 
sive bullets. These objections apply, or may apply, to 
other agencies which may later be invented for or turned to 
warlike uses. The object of both declarations is to prevent 
unnecessary physical suffering and injury without lessen- 
ing the efficacy of warlike measures. Such an aim is to 
be favored from all points of view, and is in full accord 
with the objects of war. Such being the case, a general 
prohibition should be adopted under which specific cases 
could be brought. Such a provision has been inserted in 
the Laws and Customs of War on Land, adopted hx the 
conference at The Hague, by which it is prohibited "to 
emplov arms, projectiles, or material of a nature to cause 
superfluous suffering." Specifications under such a prohi- 
bition could be made if thought advisable, e.g., there might 
be added an illustrative clause, "such as explosive or 
expanding bullets, projectiles whose sole object is the dif- 



NEW TYPES OF GUNS. 145 

fusion of asphyxiating and deleterious gases, etc., or other 
agencies which cause suffering disproportionate to the mili- 
tary ends to be gained by their use." 

The third declaration should accordingly be made to con- 
form to the principle embodied in the Laws and Customs 
of War on Land. 

B. New types of guns. — It was voted that "the confer- 
ence expresses the wish that the questions with regard to 
rifles and naval guns, as considered by it, may be studied 
b} r the Governments with the object of coming to an 
agreement respecting the employment of new types and 
calibers." 

The consideration of the limitation of the use of new 
types and calibers of guns received much attention at the 
conference. On the matter there was a wide divergence 
of opinion. There was also a proposition looking to the 
limitation of the use of new kinds of powder and explosive 
materials. The reasons given in support of these propo- 
sitions varied, but econonry was frequently mentioned. 
It was shown, however, that often the reason for the adop- 
tion of a new explosive or type of gun was primarily one 
of economy. Propositions to limit the weight of gun, the 
caliber, the w T eight of the bullet, the initial velocity, the 
number of shots per minute, and the nature of the pro- 
jectile were discussed. These limitations were to run for 
a period of five years if adopted. 

The question was asked as to whether if the limitation 
of cannons to the type of the most perfect then in use 
would be understood to mean a limitation making it pos- 
sible for the less advanced states to place themselves 
on a level with the more advanced. It was shown that 
this would introduce a difficulty in the way of obtaining 
evidence as to what form of cannon of those at the time in 
use was the best. Indeed, the state having such cannon 
would hardly care to give evidence of the fact and to dis- 
close its points of excellence. The result of the discussion 
showed an unfavorable opinion on the part of the larger 
states, while Russia and several of the minor states favored 
the limitation. 

16843—06 10 



146 THREE HAGUE DECLARATIONS. 

In regard to the use of new kinds of powder, the dis- 
cussion, in which Captain Crozier took a leading part, 
showed that a limitation was not practicable and might 
not be humane or economic. No state favored this re- 
striction. 

Conclusion. — Discussion and study of the question of 
restriction upon invention and use of new types and cali- 
bers of guns subsequent to the conference in 1899 seeni^ 
to show that such action would not necessarily lessen the 
burden of Avar, shorten its duration, or make it more 
humane. This being the opinion, which seems to accord 
with the facts, it does not seem logical to impose any re- 
striction and such a limitation should not be adopted. 

It may be further said that if adopted the practical 
difficulties of carrying into effect such a regulation would 
probably be almost insurmountable. 

C. Bombardment ofoj>en towns. — A.t The Hague confer- 
ence in 1899 it was voted that — 

The conference expresses the wish that the proposal to settle the 
question of the bombardment of ports, towns, and villages by a naval 
force may be referred to a subsequent conference for consideration. 

This subject was quite fully discussed by the Naval War 
College in 1901 and 1903. (International Law Situations, 
1901, pp. 5-37; International Law Discussions, 1903, pp. 

23-27.) 

Conclusion. — In accord with those discussions the fol- 
lowing regulation seems advisable : 

The bombardment by a naval force of unfortified and undefended 
towns, villages, or buildings is forbidden, though such towns, villages, 
or buildings are liable to the damages incident to the destruction of 
military or naval establishments, public depots of munitions of war, 
or vessels of war in port; and such towns, villages, or buildings are 
liable to bombardment when reasonable requisitions for provisions and 
supplies at the time essential to the naval force are withheld, in which 
case due notice of bombardment shall be given. 

Steps should be taken to spare, as far as possible, edifices devoted 
to religion, art, science, and charity, hospitals and places where the 
sick and wounded are collected, provided they are not used at the 
same time for military purposes. The besieged should indicate these 
buildings or places by some particular and visible signs, which should 
previously be notified to the assailants. 



Topic VIII. 

It has been proposed to regulate the use of mines and 
similar agencies in maritime warfare. What, if any, 
should be the regulations I 

CONCLUSION. 

1. Unanchored contact mines are prohibited, except 
those that by construction are rendered innocuous after a 
limited time, certainly before passing outside the area of 
immediate belligerent activities. 

2. Anchored contact mines that do not become innocu- 
ous on getting adrift are prohibited.. 

3. If anchored contact mines be used within belligerent 
jurisdiction or within the area of immediate belligerent 
activities, due precaution shall be taken for the safety of 
neutrals. 

DISCUSSION AND NOTES. 

Certain questions. — The use of mines in maritime war- 
fare gives rise to several questions. 

1. There is the general question as to wmether the use 
of mines is in an\ T case allowable. 

2. If allowable, there arise special questions as to (a) 
character of permitted mines, (b) area of permitted use, 
(c) purpose of permitted use. 

1. Use of mines in general. — The question as to whether 
the use of mines is in any case allowable is one which has 
been discussed in a manner similar to that of the discus- 
sion of the use of torpedoes at an earlier date. The dis- 
cussion resulted in the recognition of the use of torpedoes 
as a legitimate means of warfare so soon as this means of 
warfare was under reasonable control of the military 

147 



148 THE USE OF MINES. 

forces using it, Torpedoes are now considered legitimate 
means of warfare. None of the conventions and confer- 
ences have endeavored to prohibit the use of torpedoes or 
mines. It has been recognized that both mines and tor- 
pedoes are legitimate means of warfare in recent wars, 
and both agencies have been used. This, however, has 
been recognized on\y so far as the belligerents are con- 
cerned. It may be affirmed that the use of mines is a 
legitimate means of hostilities as between belligerents. 

This position does not, however, imply that mines ma} T 
be used at will without regard to those not concerned in 
the war. As the torpedo and certain other means of hos- 
tilities are necessarily directed and dispatched by the bel- 
ligerent and are under belligerent control to this extent, 
the probable range of their destructive activity can be 
reasonably known. 

Certain mines, however, are not thus under control and 
their probable action may not be predicted or directed. 
The claim seems to be reasonable that agenies so destruc- 
tive as mines shall Derestricted in such manner as to affect 
solely the belligerents concerned in the hostilities. 

2. Limitations on use of mine*. — The questions then 
arise as to the special restrictions upon the use of mines. 

(1) Should the character of the mines be limited? In 
general mines may be exploded at a fixed time by a 
mechanical arrangement, may be exploded at an}' time 
when controlled by shore or other connections, or may be 
exploded by contact with a vessel passing over the mine. 

Of these mines, those which are regulated to explode at 
a time fixed by a belligerent and those whose explosion is 
at the will of the belligerent operating the mine from the 
shore or otherwise, may be said to be open to little or no 
objection. 

Contact mines — those which explode on coming in con- 
tact with a vessel — may, however, be anchored or free. 
Contact mines which are anchored are dangerous to navi- 
gation, and make it necessary that their field at all times be 
so guarded as not to be a menace to parties not concerned 
in the hostilities. This may be done in various ways, as 
by prohibiting the entrance of neutrals within certain 



CLASSES OF MINES. 149 

areas, piloting neutrals through the mined areas, etc. 
Thus anchored, contact mines may be said to be negatively 
under control of the belligerent locating them and little 
objection can be raised to their use, provided they are in 
fact thus controlled, and there seems to be no reason why 
anchored contact mines may not at all times be under this 
measure of negative control. Mechanical construction 
may be such that if an anchored mine gets adrift through 
action of tides, winds, or otherwise it may" from that 
moment be rendered harmless as a mine. It may be pre- 
dicted that a certain per cent of mines will, under ordinary 
circumstances, get adrift. This being the case, contact 
anchored mines should so be constructed as to render them 
harmless on becoming adrift. With this limitation on the 
use of anchored contact mines there seems to be little ob- 
jection to these mines when the field is properly guarded, 
so far as its use by innocent vessels is concerned. 

There remains the class of mines which come in the cate- 
gory of unanchored contact mines, i. e. , mines which are 
carried by the currents and explode on contact with a ves- 
sel or other object. Such mines are not within the control 
of the party launching them, are liable to inflict damage 
upon any vessel coming in contact with them, may injure 
noncombatant, combatant, or neutral alike; may, and 
probably will, do injury out of proportion to any possible 
military advantage that can be secured by their use. 
Their use is not a military necessity. It may be reason- 
able, therefore, to conclude that unanchored contact mines 
should be restricted in their use. 

(2) The area in which unanchored contact mines can be 
used has recently been discussed in the public press, par- 
ticularly because during the Russo-Japanese war there 
were reports, which have not been substantiated, that un- 
anchored mines were intentionally or accidentally adrift 
on the high seas in the neighborhood of Port Arthur. 

The high seas being res nulliits, neither belligerent has 
a right to render passage over the high seas unnecessary 
hazardous. It is generally admitted that neutrals and non- 
combatants enter the field of actual hostile operations at 
their own risk. This field is usually evident from the pres- 



150 THE C3E OF MINES. 

ence of belligerent vessels or otherwise. The presence of 
unanehored contact mines is. however, not an evident but 
a hidden peril, and the danger consists, to a considerable 
extent, in the hidden nature. Mines of this character are 
not within control of the belligerent. The lack of control, 
the hidden nature of the peril to third parties, the inade- 
quate military necessity, and the great danger from the 
use of these mines would be ample reasons for the prohi- 
bition of the use of unanehored and uncontrolled mines in 
the high sea-. 

The use of unanehored contact mines within the three- 
mile limit has received some consideration. The objections 
raised against the unanehored contact mine on the hio-h 
seas prevail in large measure against similar mines within 
the maritime jurisdiction of the belligerent. It is consid- 
ered that the advantage to be gained from the use of such 
uncertain means of warfare is in no sense commensurate 
with the possible and probable danger to third parties. 
The mines are also ordinarily beyond control when launched 
and subject to action of tide and winds. They may pass 
beyond the maritime jurisdiction and easily become a men- 
ace to maritime commerce in general. It would therefore 
seem advisable that the restriction upon the use of unan- 
ehored contact mines be made general, and that a proposi- 
tion prohibiting the use of uncontrolled, unanehored con- 
tact mines be adopted. 

Certain contact mines, though unanehored. may to some 
extent be controlled, as are those regulated by clockwork 
to sink or to become, innocuous after a fixed number of 
minutes, after the manner of certain torpedoes. There 
seems little valid objection to the use of such mines within 
the held of active belligerent operations. In such a case 
the mines must be so controlled as to make the period of 
effectiveness so short that the mines will not during this 
period drift into contact with neutral vessels or come 
within the path of neutral vessels. Such mines would be 
directed toward a specific object — e. g., checking the pur- 
suit of an enemy — and would cease to be a hidden peril be- 
fore they would come in contact with a neutral vessel or 
pass beyond the immediate field of hostile operations. 



PROHIBITION OF UNCONTROLLED MINES. 151 

Their use would be analogous to the use of certain tor- 
pedoes. 

Of the use of mines and torpedoes Commander Von 
Uslar, of the German navy, has recently said: 

A further restriction of the instruments of war now admissible by in- 
ternational law is, for the immediate future, not necessary. It is another 
question whether the instruments should be employed everywhere. 
The safety of neutral shipping demands that on the high seas instru- 
ments of war which area hidden danger to shipping shall be avoided. 
As long as this demand does not run counter to the belligerent's ob- 
ject — viz, to overcome his opponent quickly — it must be acceded to. 

Mines, stationary and drifting, as well as torpedoes without sinking 
appliances, are therefore to be regarded as admissible only in the ter- 
ritorial waters of the belligerents and in the actual operation area of 
the fleets. There is, however, no justification for the demand that 
mines shall be used to close harbors only in the case of an effective 
blockade. The belligerents must be permitted to employ this measure 
against all harbors that the adversary will possibly use as a base for 
his operations, on condition that they notify the neutral governments 
in good time. (181 North American Review, 1905, p. 184.) 

When the use of unanchored contact mines is prohibited 
many of the main objections to the use of mines are removed. 
It has been suggested that the use of lire rafts or rafts or 
vessels loaded with explosives should be also prohibited. 
It has usually been held that these are not hidden dangers 
against which it is not possible for the neutral to guard, 
and that within the maritime jurisdiction of the belligerent 
and within the area of hostilities the neutral must take 
such risks as those to which the belligerent's own peaceful 
commerce is exposed. It might be advisable, however, to 
make the prohibition general, so far as rafts or vessels 
loaded with explosives are concerned. 

A prohibition to the following effect would be desirable 
in each case: 

The use of uncontrolled, unanchored contact mines or 
other similar uncontrolled agencies is prohibited. 

(3) If uncontrolled, unanchored contact mines are pro- 
hibited, the next question arises as to the purpose for which 
other mines may be used. 

Some have objected to the use of controlled mines at 
points outside of belligerent jurisdiction for the purpose 



152 THE USE OF MINES. 

of preventing entrance to a belligerent territory, whether 
as a measure of defense or offense. Others have main- 
tained that even a blockade of an enemy port can thus be 
established. 

In regard to the establishment of a practical blockade 
by the location of fixed contact mines or other mines, it 
may be said that in general neutrals have a right to carry 
on ordinary commerce with belligerents in time of war. 
The risk that the blockade runner incurs is that of confis- 
cation of ship and cargo. The officers and men are not 
regarded as enemies or treated as such for the simple 
offense of attempting to violate blockade. A blockade by 
mines of which a neutral has not proper warning would 
introduce the unallowable risk of entire destruction of 
ship and crew by the explosion of a hidden mine. Through 
the use of anchored contact mines it is conceivable that 
the whole coast of a country could be practically block- 
aded, while the blockading belligerent forces might retire 
and incur no risk of hostile attack. As the neutral has 
the right of innocent passage over the seas, the placing of 
fixed mines in an area not under effective control of the 
belligerent or not in the field of hostile operations of 
which a neutral would be duly advised would not be allow- 
able. It may be even further asserted that no uncontrolled 
contact mines should be placed on the high seas, for it is 
uncertain how long such mines may be within the field of 
operations of the belligerent who, alone, may know their 
location. The regulation should therefore properly pro- 
hibit the use of uncontrolled contact mines on the high 
seas for the purpose of blockade or for other offensive or 
defensive purposes. 

It is generally admitted that the belligerent jurisdiction 
is the proper area for hostilities. Within this area there- 
fore there ma} T be a greater freedom of use of mines. The 
sole restriction here should be that the mines should be 
under control positively or negatively; i. e., the belliger- 
ent should be able to control the mines in such a wa} r that 
the} T should not imperil the neutral or the belligerent 
might keep the neutral from or guide him through the 
mined area. In other words, the use of mines should be 



CONCLUSIONS AS TO USE OF MINES. 153 

confined strictly to military operations and areas and the 
perils should not extend to innocent neutrals. Mines that 
are absolutely within the control of the belligerent and 
ma} 7 be exploded or remain innocent at his will or are of 
such construction as not to imperil neutrals are proper 
means of war in the same manner as cannons or torpedoes. 
Conclusion. — The general conclusion in regard to mines 
might be summaiized as follows: 

1. Unanchored contact mines are prohibited except 
those that by construction are rendered innocuous after a 
limited time, certainly before passing outside the area of 
immediate belligerent activities. 

2. Anchored contact mines that do not become innocu- 
ous on getting adrift are prohibited. 

3. If anchored contact mines be used within belligerent 
jurisdiction or within the area of belligerent activities, due 
precaution shall be taken for the safety of neutrals. 



Topic IX. 

What limitations should be placed on the entrance and 
sojourn of belligerent vessels within neutral ports? 

(a) Of vessels of one belligerent when vessel of other is 
within the port 1 

(b) Of entrance and sojourn for repairs and of entrance 
and sojourn for supplies? 

(r) Of entrance and sojourn to escape capture and of 
entrance and sojourn when defeated and damaged by the 
enemy ? 

conclusion. 

(a) The twenty-four-hour rule should' be observed. 

(b) When .not entering to escape the enemy or repair 
damages caused b} T act of war, a belligerent vessel may 
make repairs necessary to continue the voyage in safety, 
and may take on such supplies as are necessary to reach 
the nearest port of her home country or some nearer neu- 
tral destination. 

(c) Belligerent vessels entering a neutral port for the 
purpose of escaping capture or repairing damages caused 
by act of war, if remaining beyond twenty-four hours, are 
liable to be interned. 

DISCUSSION AND NOTES. a 

(a) Sojourn of vessel of one belligerent when vessel of 
other belligerent is within the port. — The discussion and 
solution at this Naval War College in 1904 of Situation V 
seemed to show the propriety of a regulation embodying 
the following principles: When vessels (whether ships of 

« It is understood that the term " belligerent vessels " does not apply 
to strictly private vessels of the belligerent. 

154 



BELLIGERENT SHIPS IN NEUTRAL PORTS. 155 

war or merchant vessels) of both belligerents are within 
the same port waters or roadstead in the territorial juris- 
diction of a neutral, there shall be an interval of not less 
than twenty-four hours between the departure therefrom 
of any ship of one belligerent and a ship of war of the 
other belligerent. (See International Law Situations, 
Naval War College, 1904, p. 79.) 

(b) Entrance and sojourn for repairs and entrance and 
sojourn for supplies. — The neutrality proclamation of the 
United States, issued February 11, 1904, in regard to the 
Russo-Japanese war, gives certain specific statements con- 
cerning the sojourn of belligerent vessels in ports of the 
United States: 

And I do hereby further declare and proclaim that any frequenting 
and use of the waters within the territorial jurisdiction of the United 
States by the armed vessels of either belligerent, whether public ships 
or privateers, for the purpose of preparing for hostile operations or as 
posts of observations upon the ships of war or privateers or merchant 
vessels of the other belligerent lying within or about to enter the 
jurisdiction of the United States must be regarded as unfriendly and 
offensive and in violation of that neutrality which it is the determina- 
tion of this Government to observe; and to the end that the hazard 
and inconvenience of such apprehended practices may be avoided I 
further proclaim and declare that from and after the 15th day of 
February instant, and during the continuance of the present hostili- 
ties between Japan and Russia, no ship of war or privateer of either 
belligerent shall be permitted to make use of any port, harbor, road- 
stead, or waters subject to the jurisdiction of the United States from 
which a vessel of the other belligerent (whether the same shall be a 
ship of war, a privateer, or a merchant ship) shall have previously 
departed until after the expiration of at least twenty-four hours from 
the departure of such last-mentioned vessel beyond the jurisdiction 
of the United States. If any ship of war or privateer of either bellig- 
erent shall, after the time this notification takes effect, enter any port, 
harbor, roadstead, or waters, except i:i case of stress of weather or of 
her requiring provisions or things necessary for the subsistence of her 
crew, or for repairs; in either of which cases the authorities of the 
port or of the nearest port (as the case may be) shall require her to 
put to sea as aoon as possible after the expiration of such period of 
twenty-four hours, without permitting her to take in supplies beyond 
what may be necessary for her immediate use; and no such vessel 
which may have been permitted to remain within the waters of the 
United States for the purpose of repair shall continue within such 
port, harbor, roadstead, or waters for a longer period than twenty- 



156 INTERNMENT OF BELLIGERENT VESSELS. 

four hours after her necessary repairs shall have been completed 

unless within such twenty-four hours a vessel, whether ship of war, 
privateer, or merchant ship, of the other belligerent shall have 
departed therefrom, in which ease the time limited for the departure 
of such ship of war or privateer shall be extended so far as may be 
necessary to secure an interval of not less than twenty-four hours 
between such departure and that of any ship of war, privateer, or 
merchant ship of the other belligerent which may have previously 
quit the same port, harbor, roadstead, or waters. 

The explicit British provisions are as follows: 

Rule 1. During the continuance of the present state of war all 
ships of war of either belligerent are prohibited from making use of 
any port or roadstead in the United Kingdom, the Isle of Man, or the 
Channel Islands, or in any of His Majesty's colonies or foreign pos- 
sessions or dependencies, or of any waters subject to the territorial 
jurisdiction of the British Crown, as a station or place of resort for 
any warlike purpose, or for the purpose of obtaining any facilities for 
warlike equipment; and no ship of war of either belligerent shall 
hereafter be permitted to leave any such port, roadstead, or waters 
from which any vessel of the other belligerent (whether the same shall 
be a ship of war or a merchant ship) shall have previously departed 
until after the expiration of at least twenty-four hours from the depar- 
ture of such last-mentioned vessel beyond the territorial jurisdiction 
of His Majesty. 

Rule 2. If there is now in any such port, roadstead, or waters sub- 
ject to the territorial jurisdiction of the British Crown any ship of war 
of either belligerent, such ship of war shall leave such port, roadstead, 
or waters within such time, not less than twenty-four hours, as shall 
be reasonable, having regard to all the circumstances and the condi- 
tion of such ship as to repairs, provisions, or things necessary for the 
subsistence of her crew; and if after the date hereof any ship of war 
of either belligerent shall enter any such port, roadstead, or waters 
subject to the territorial jurisdiction of the British Crown, such ship 
shall depart and put to sea within twenty-four hours after her entrance 
into any such port, roadstead, or waters, except in case of stress of 
weather, or of her requiring provisions or things necessary for the sub- 
sistence of her crew, or repairs; in either of which cases the authori- 
ties of the port or of the nearest port (as the case may be) shall 
require her to put to sea as soon as possible after the expiration of 
such period of twenty-four hours, without permitting her to take in 
supplies beyond what may be necessary for her immediate use; and no 
such vessel which may have been allowed to remain within British 
waters for the purpose of repair shall continue in any such port, road- 
stead, or waters for a longer period than twenty-four hours after her 
necessary repairs shall have been completed; provided, nevertheless, 
that in all cases in which there shall be any vessels (whether ships of 
war or merchant ships) of both the said belligerent parties in thesame 



AMERICAN AND BRITISH PROCLAMATIONS. 157 

port, roadstead, or waters within the territorial jurisdiction of His 
Majesty, there shall be an interval of not less than twenty-four hours 
between the departure therefrom of any such vessel (whether a ship 
of war or merchant ship) of the one belligerent and the subsequent 
departure therefrom of any ship of war of the other belligerent; and 
the time hereby limited for the departure of such ships of war, re- 
spectively, shall always, in case of necessity, be extended so far as may 
be requisite for giving effect to this proviso, but no further or other- 
wise. 

Rule 3. No ship of war of either belligerent shall hereafter be per- 
mitted, while in any such port, roadstead, or waters subject to the 
territorial jurisdiction of His Majesty, to take in any supplies, except 
provisions and such other things as may be requisite for the subsist- 
ence of her crew, and except so much coal only as may be sufficient 
to carry such vessel to the nearest port of her own country, or to some 
nearer destination, and no coal shall again be supplied to any such 
ship of war in the same or any other port, roadstead, or waters subject 
to the territorial jurisdiction of His Majesty, without special per- 
mission, until after the expiration of three months from the time 
when such coal may have been last supplied to her within British 
waters as aforesaid. 

Rule 4. Armed ships of either belligerent are interdicted from car- 
rying prizes made by them into the ports, harbors, roadsteads, or 
waters of the United Kingdom, the Isle of Man, the Channel Islands, 
or any of His Majesty's colonies or possessions abroad. 

Rule 3 of this British proclamation received further in- 
terpretation in the proclamation of the governor of Malta 
of August 12, 1904. This proclamation states that — 

Whereas in giving the said order we were guided by the principle 
that belligerent ships of war are admitted into neutral ports in view 
of exigencies of life at sea and the hospitality which it is customary 
to extend to vessels of friendly powers; 

And whereas this principle does not extend to enable belligerent 
ships of war to utilize neutral ports directly for the purpose of hostile 
operations: 

We therefore, in the name of His Majesty, order and direct that the 
above-quoted rule No. 3, published by proclamation No. 1 of the 12th 
February, 1904, inasmuch as it refers to the extent of coal which may 
be supplied to belligerent ships of war in British ports during the 
present war, shall not be understood as having any application in case 
of belligerent fleet proceeding either to the seat of war or to any posi- 
tion or positions on the line of route with the object of intercepting 
neutral ships on suspicion of carrying contraband of war, and that 
such fleet shall not be permitted to make use in any way of any port, 
roadstead, or waters subject to the jurisdiction of His Majesty for the 
purpose of coaling, either directly from the shore or from colliers ae- 



158 INTERNMENT OF BELLIGERENT VESSELS. 

componying such fleet, whether vessels of such fleet present them- 
selves to any such port or roadstead or within the said waters at the 
same time or successively, and, second, that the same practice shall be 
pursued with reference to single belligerent ships of war proceeding 
for purpose of belligerent operations as above defined; provided that 
this is not to be applied to the case of vessels putting in on account of 
actual distress at sea. in which case the provision of rule Xo. 3, as 
published by proclamation No. 1 of the 12th February, 1904, shall be 
applicable. 

This interpretation of the rule No. 3 would prohibit the 
use of British ports for coaling for vessels proceeding to 
the seat of war or to any position on the line of route for 
intercepting neutral ships on suspicion of carrying contra- 
band. Such a provision tends to emphasize the necessity 
of making a fleet self-sufficient. It can not reasonably be 
expected that a neutral power will permit its own ports 
to be used as sources of supplies and coal, using which the 
belligerent vessel or fleet may set forth to seize the same 
neutral's commerce or interrupt its trade. 

The French declaration of neutrality of April 27, 1898, 
as follows, provided only for the limitation of the sojourn 
of ships of war with prizes, but did not limit the sojourn 
of war vessels unaccompanied by prize: 

The Government decides in addition that no ship of war of either 
belligerent will be permitted to enter and to remain with her prizes 
in the harbors and anchorages of France, its colonies, and protectorates 
for more than twenty-four hours, except in case of forced delay or 
justifiable necessity. 

Identical provisions were contained in instructions of 
the French minister of marine, issued in February, 1904, 
and referring to the Russo-Japanese war. There were 
added, however, certain explanatory clauses, as follows: 

" Je crois devoir ajouter a ces regies principales quelques observa- 
tions complementaires resumant les traditions du gouvernement fran- 
£ais: 1°. En aucun cas, un belligerant ne pent faire usage d'un port 
francais ou appartenant a un Etat protege, dans un but de guerre, ou 
pour s'y approvisionner d'armes ou de munitions de guerre, ou pour 
y executer, sous pretexte de reparations, des travaux ayant pour but 
d'augmenter sa puissance militaire: 2°. La duree du sejour dans nos 
ports de belligcrants non aceompagnes d'une prise n'a etc limitce par 
aucune disposition speeiale. Mais pour etre autorises A y sojourner, 
ils sont tenus de se conformer aux conditions ordinaires de la neutra- 
lity, qui peuvent se resumer ainsi qu'il suit: a) Les batiments admis an 



FKENCH POSITION ON SOJOURN. 159 

benefice de l'asile doivent entretenir des relations pacifiques avec tous 
les navires mouilles dans le meme port, et, en particulier, avec les 
batiments appartenant a leurs ennemis; b) Lesdits navires ne peuvent, 
a Paide de ressources puisees a terre, augm enter leur materiel de guerre, 
renforcer leurs equipages, ni faire des enrolements volontaires, meme 
parmi leurs nationaux; c) lis doivent s'abstenir de toute enquete sur 
les forces, 1' emplacement on les ressources de leurs enemis, ne pas 
appareiller brusquementpourpoursuivre ceux qui leursearient signales, 
en un mot, s'abstenir de faire du lieu de leur residence la base d'une 
operation quelconque contre Pennemi; de n' employer la force ni la 
ruse pour recousser les prises faites par Pennemi, ou pour delivrer des 
prisonniers de leur nation; 3°. II ne peut etre fourni a un belligerant 
que les vivres, denrees approvisionnements et moyens de reparations 
necessaires a la subsistance de son equipage et a la securite de sa 
navigation; 4°. Lorsque des belligerants ou des navires de commerce 
des deux parties bellige rantes se trouveront ensemble dans un port 
francais, il y aura un intervalle qui ne pourra etre moindre de vingt- 
quatre heures entre le depart de tout navire de Pun des belligerants 
et le depart subsequent de tout batiment de P autre belligerant. Ce 
delai sera etendu, en cas de besoin, sur Pordre de Pautorite maritime, 
autant que cela pourra etre necessaire; 5°. il est interdit aux bellige- 
rants de see livrer a aucun acte d'hostilite dans toute Petendue des eaux 
territoriales. Si une violation de cette regie venait a votre connais-' 
sance, sans que vous ayez pu la prevenir, vous auriez a m'en rendre 
compte immediatement, afin que le gouvernement puisse faire enten- 
dre, aupres de qui de droit, les protestations et reclamations neces- 
saires. II en sera de meme si des navires de commerce portant le 
pavilion francais ou celui d'un des Etats proteges par la France ve- 
naient a etre molestes dans Pexercice du droit de visite qui appartient 
aux belligerants. 

The above may property be regarded as setting forth 
officially the French position. 

The latest statement of the French point of view as to 
the use of neutral waters by belligerents in time of war 
is given in an article by Charles Dupuis on "Maritime 
Responsibilities in Time of War." He says: 

Whilst any act of war is forbidden in territorial waters, free passage 
through them is allowed, even to the belligerent war ships, as in time 
of peace. The area of territorial waters is not absolutely fixed for all 
states by international law; France admits that this area is one of 
three sea miles from low-water mark. Sovereign jurisdiction is exer- 
cised more strictly in ports. They are not a part of the sea routes; 
they are only the points of departure and arrival, the necessary inter- 
mediaries between sea and land, and, occasionally, an indispensable 
refuge from the perils of the sea. The riparian state should, in prin- 
ciple, keep its ports open in time of peace; it should always allow 



160 INTERNMENT OF BELLIGERENT VESSELS. 

access thereto to ships in time of distress. The neutral state is equally 
hound to give shelter to belligerent war ships which are prevented by 
the state of the sea, the damages they have sustained, or their want 
of provisions, from pursuing their journey; it may, without being 
hound to do so, give them shelter in any other event. France throws 
her ports with' open 1o belligerent war ships; she does not limit the 
length of their stay; she only limits it to twenty-four hours when they 
have entered the port with prizes taken from the enemy. War ships 
which have sought refuge in a neutral port to escape the enemy's pur- 
suit are free to stay or to leave. If the enemy wishes to reduce them 
to a state of impotence, it is for him to take the necessary measures to 
make it dangerous for them to leave. 

Belligerent war ships which have entered a French port may effect 
repairs there, or take in stores necessary for navigation or for the sub- 
sistence of their crews; they may not, on the other hand, recruit 
combatants, or provide themselves with arms, munitions, or articles 
for use in action. Their stay in a neutral port may, therefore, allow 
them to leave it with fresh means of navigation, but not with any 
increase of righting strength. Nevertheless, the enjoyment of facili- 
ties of taking in stores or coal might degenerate into an abuse. If a 
war ship were free to return periodically to the same port in search of 
articles which, whilst not instruments of warfare, were yet resources 
indispensable to carrying on her campaign, she would be turning this 
harbor into an actual base of operations. Continuous resort to the 
same place with the object of taking in stores, thanks to the resources 
of the place, is the characteristic of a base of operations — that is to 
say, of the " point d'appui " for renewing and multiplying the most 
varied enterprises against the enemy. 

Still, in certain cases, a neutral harbor, or a station within neutral 
waters, might happen to become not a base of operations but the base 
of a deliberate operation of a hostile character. This would be the 
case where a ship or squadron claimed the right to lie in w T ait, within 
the shelter of neutral waters, for the passage of a hostile force in 
order to attack it unexpectedly at the limits of such neutral waters. 
French orders issued in 1904 by the minister of marine forbid any 
preparation of hostile acts or operations, even of an isolated nature, 
being made within French waters. (North American Review, August, 
1905, vol. 181, p. 182. ) 

A neutral may properly limit or prohibit the sojourn 
within its ports of a belligerent vessel which seeks to 
repair damages caused by war. It may properly admit a 
vessel seeking to repair damages caused by action of the 
elements. Such repairs should be confined to making the 
vessel seaworthy. 

A belligerent vessel may take on supplies necessary to 
reach her nearest home port or some nearer destination. 



SITUATION DISCUSSED, 1904. 161 

She may not, however, take on military stores or ammu- 
nition. This may be held to apply, according to the British 
interpretation, to the restriction of the supply of coal to 
that which is to be used for the purpose of navigation 
only and not for action against belligerents or for pursuit 
of contraband. 

(c) Of entrance and sojourn to escape capture and of 
entrance and sojourn when defeated and damaged by the 
enemy ? 

Situation V, considered hy this Naval War College in 
the summer of 1904, bore upon this subject. 

The situation as proposed was as follows: 

While war exists between the United States and State X a number 
of the war vessels of State X are pursued by a United States fleet and seek 
refuge in a port of State Y, a neutral. The commander of the United 
States fleet, after waiting outside the port lor twenty-four hours, pro- 
tests to the authorities of State Y, claiming that as the vessels of the 
enemy have entered the neutral port to escape his fleet they may not 
justly be sheltered longer. 

(a) Is the position taken by the United States com- 
mander correct? 

(b) What should the authorities of State Y do ? 
The conclusion was as follows: 

(a) From the point of view of both theory and practice it would 
seem that the United States commander, under the circumst. nces as 
stated in the situation, would be justified in claiming that belligerent 
vessels entering and remaining in the neutral port in order to escape 
capture by his vessels, should be interned for the remaining period 
of the war. 

(b) The authorities of State Y would also be under obligations to 
intern the vessels of State X thus seeking neutral protection. 

Speaking of as} r lum to naval forces, Hall says: 

Marine warfare so far differs from hostilities on land that the forces 
of a belligerent may enter neutral territory without being under stress 
from their enemy. Partly as a consequence of the habit of freely 
admitting foreign public ships of war belonging to friendly powers to 
the ports of a State as a matter of courtesy, partly because of the 
inevitable conditions of navigation, it is not the custom to apply the 
same rigor of precaution to naval as to military forces. A vessel of 
war may enter and stay in a neutral harbor without special reasons; 
she is not disarmed on taking refuge after defeat; she may obtain such 
repair as will enable her to continue her voyage in safety; she may 
take in such provisions as she needs, and, if a steamer, she may fill up 
16843—06 11 



162 INTERNMENT OF BELLIGERENT VESSELS. 

with enough coal to enable her to reach the nearest port of her own 
country; nor is there anything to prevent her from enjoying the 
security of neutral waters for so long as may seem good to her. To 
disable a vessel, or to render her permanently immovable, is to assist 
her enemy; to put her in a condition to undertake offensive opera- 
tions is to aid her country in its war. ' The principle is obvious;- its 
application is susceptible of much variation; and in the treatment of 
ships, as in all other matters in which the neutral holds his delicate 
scale between two belligerents, a tendency toward the enforcement of 
a harsher rule becomes more defined with each successive war. 
(International Law, 5th ed., p. 626.) 

The tendency toward the establishment of a definite rule 
has certainly become evident. The practice of dismantling 
and internment has been clearly established during the 
Russo-Japanese war. 

The first instance was a subject of much discussion. 
The Russian vessel Mdndjur, which entered the port of 
Shanghai about the middle of February in 1904, was, 
after considerable exchange of notes, interned to the satis- 
faction of Japan at the end of March. Parts of the 
machinery were removed and the vessel was disarmed. 
In August, 1904, the Russian vessels Askold and Grosvoi, 
which had sought refuge in the same port, were disman- 
tled and the crew interned. About the same time the 
Tsarevitch and some smaller vessels sought refuge in the 
German jurisdiction at Kiaochow. These vessels were 
similarly treated. The Russian cruiser Diana, which had 
escaped in the same battle, sought refuge in the French 
port of Saigon, and was dismantled and the crew interned 
on September 10, 1904. 

The transport Lena, arriving at San Francisco on Sep- 
tember 13, 1904, was likewise interned. The negotiations 
between the United States and Russia in regard to the 
conditions of the internment of the Lena are set forth in 
the following correspondence: 

Count Cassini to Mr. Adee. 
[Telegram. — Translation.] 

Russian Embassy, 

Bar Harbor, Me. , September 13, 1904- 
Our consul at San Francisco informs me that the Russian transport 
Lena has entered that port, the condition of her boilers and other 



CORRESPONDENCE CONCERNING THE LENA. 163 

damages not permitting her to continue her voyage. Under these 
circumstances I doubt not that the Lena will receive from the author- 
ities of San Francisco, and in conformity with the prescriptions of in- 
ternational law to which a vessel in her condition is entitled, all aid 
compatible with the neutrality proclaimed by the Federal Govern- 
ment. 

I am sending Mr. Hansen to Washington to see you, and come to an 

understanding with you. 

Cassini. 



Mr. Adee to Count Cassini. 

[Telegram.] 

Department of State, 
Washington, September 13, 1904- 
The matter of the Lena at San Francisco is having the instant atten- 
tion of this Department. Precise information is being sought as to 
the condition of the boilers, machinery, and hull of the ship and the 
extent and duration of the repairs needed to enable her to put to sea. 
It appears, so far, that very extensive repairs are asked, amounting to 

virtual renovation. 

Alvey A. Adee, 

Acting Secretary. 



Mr. Adee to Count Cassini. 
[Telegram.] 

Department of State, 
Washington, September 14, 1904. 
Referring to my telegram of yesterday, I have the honor to advise 
you that the President feels constrained to reach an immediate solu- 
tion of the question whether the Lena shall be repaired immediately 
so as to put to sea or be disarmed and laid up until the close of the 
war. If repaired, only such bare repairs can be allowed as may be 
necessary for seaworthiness and for taking her back to nearest home 
port, and even such repairs can be permitted only on condition that 
they do not prove to be too extensive. If disarmed, she will be laid 
up at the Mare Island Navy-Yard. Inspection made by United States 
officers at San Francisco discloses that the repairs asked for include 
complete outfit of new boilers and reconstruction of engines, consum- 
ing at least four or five months, or, according to the captain's estimate, 
eight months, and amounting to renovation of the vessel. This can 
not be allowed with due regard to neutrality. An immediate answer is 
desired, as the matter is urgent. A decision between the two alterna- 
tives should be made, so that this Government may close the incident 
not later th^n to-morrow. 

Alvey A. Adee, 

Acting Secretary of State. 



164 INTERNMENT OF BELLIGERENT VESSELS. 

Count Cassini to Mr. Adee. 

[Telegram.— Translation.] 

Russian Embassy, 
Bar Harbor j Me., September 15, 1904. 
I receive this very moment your telegram of the 14th. It is materi- 
ally impossible to receive an answer from St. Petersburg to-day. I 
beg the President to allow a delay of forty-eight hours to permit me 
to receive instructions from my Government. 

Cassini. 



Mr. Adee to Count Cassini. 

[Telegram.] 

Department of State, 

Washington, September 15, 1904. 

The admiral at San Francisco advises me this morning that the 

captain of the Lena writes him that the ship being unseaworthy must 

disarm, and asks to be allowed to make needed repairs. When the 

President shall have approved the conditions necessary to insure the 

neutralization of the Lena and her officers and crew until the end of 

the war, and to permit necessary repairs, the admiral will be instructed 

to cause the disarmament to be effected, whereupon I shall have 

pleasure in advising you further. 

Alvey A. Adee, 

Acting Secretary of State. 



Mr. Adee to Count Cassini. 
[Telegram.] 

Department of State, 

Washington, September 15, 1904. 

Referring to my telegram of this morning, I have the honor to advise 
you that the President has this afternoon issued an order directing 
that the Russian armed transport Lena, now at San Francisco, be 
taken in custody by the naval authorities of the United States and dis- 
armed, under the following conditions: 

First. Vessel to be taken to Mare Island Navy- Yard and there dis- 
armed by removal of small guns, breechblocks of large guns, small 
arms, ammunition and ordnance stores, and such other dismantle- 
ment as may be prescribed by the commandant of the navy-yard. 

Second. Written guarantee that Lena shall not leave San Francisco 
until peace shall have been concluded. Officers and crew to be 
paroled, not to leave San Francisco until some other understanding 
as to their disposal may be reached between this Government anc] 
both belligerents. 



CONDITIONS OF INTERNMENT. 165 

Third. After disarmament, vessel may be removed to private dock 
for such reasonable repairs as will make her seaworthy and preserve 
her in good condition during detention, or be so repaired at the navy- 
yard, should the Russian commander so elect. While at private dock 
the commandant of the navy-yard at Mare Island shall have custody 
of the ship, and the repairs shall be overseen by an engineer officer 
to be detailed by commandant of navy-yard. 

Fourth. The cost of repairs, of private docking, and of maintenance 
of the ship and her officers and crew while in custody to be borne by 
the Russian Government, but the berthing at Mare Island and the cus- 
tody and surveillance of the vessel to be borne by the United States. 

Fifth. When repaired, if peace shall not then have been concluded, 
the vessel to be taken back to Mare Island and there held in custody 
until the end of the war. 

Alvey A. Adee, 

Acting Secretary of State. 



Mr. Adee to Count Cassini. 
[Telegram.] 

Department of State, 
Washington, September 16, 1904. 
Dear Mr. Ambassador: Your telegram of yesterday reached me in 
the evening. As I explained to Mr. Hansen, the request of my tele- 
gram of the 14th for a decision between the alternatives in the Lena 
case was superseded by the formal application of Captain Berlinsky 
and by my telegram to you of yesterday morning apprising you of the 
decision to disarm. I am glad the incident has been so satisfactorily 

closed. 

Alvey A. Adee. 



Count Cassini to Mr. Adee. 
[Translation.] 

Bar Harbor, September 20, 1904. 

Mr. Assistant Secretary of State: The Imperial Government has 
just advised me, and charges me to acquaint the Federal Government 
with the fact that it adheres to the provisions taken by the President 
concerning the disarmament and the other measures and provisions of 
the transport Lena, which entered the portof San Francisco on the 11th 
instant, and whose boilers and other machinery demand urgent 
repairs. 

There remains to settle the question of the repatriation of the crew 
of the transport Lena. The Imperial Government expresses the firm 
assurance that the Federal authorities will facilitate the passage of 
the officers and seamen of the Lena across the territory of the United 



166 INTERNMENT OF BELLIGERENT VESSELS. 

States, according them all the assistance compatible with the duties of 
neutrality and the amicable relations existing between the two coun- 
tries. Captain Berlinsky, commander of the Lena, has expressed to me a 
desire that five officers and 100 seamen shall remain in San Francisco 
for necessary (interieur) service on the transport. I do not doubt, Mr. 
Assistant Secretary of State, that these requests, which I have the 
honor to communicate to you, will be received by the Federal Gov- 
ernment in the spirit of justice and impartiality which distinguishes it. 
Be pleased to accept, Mr. Assistant Secretary of State, etc. , 

Cassini. 



Mr. Loomis to Count Cassini. 

Department of State, 
Washington, September 24, 1904- 

My Dear Mr. Ambassador: Your note of the 20th instant, addressed 
to Mr. Adee, has been received, and as I have returned to my post, 
the agreeable duty of replying to it devolves upon me. 

I have shown it to the President, who is glad that the Imperial 
Government appreciates the course which, in the exercise of his ex- 
ecutive prerogative and in consonance with international law, he 
found it incumbent upon him to pursue in respect to the disarmament 
of the Lena in execution of the policy of strict neutrality adopted by 
this Government. 

The President, however, directs me to say that he would not find 
it consistent with the neutral course it behooves him to follow to act 
upon a request for the repatriation of any of the officers or crew of the 
Lena unless he were advised that the two belligerent powers were in 
accord as to doing so. Without their agreement to that end he regards 
the position of these men as being identical in principle with that of 
a military force entering neutral territory and there necessarily to be 
held by the neutral. He could not take upon himself the function of 
repatriating the men under parole to return to Russia for that would 
be the prerogative of the belligerent and not of the neutral. 

If it should be the wish of your Government to have the request 
brought to the attention of the Japanese Government it may be timely 
for me to say that we have an intimation to the effect that if over- 
tures in this sense were made by us the consent of Japan would not 
be given. 

I have pleasure in assuring you, however, that every effort will be 
made to render the detention of the officers and crew of the Lena, as 
well as of Captain Gunther, who is stated to have been a passenger, 
as little irksome as is consistent with the President's determination to 
carry out to the full the neutrality he has proclaimed. 
I am, etc. , 

Francis B. Loomis. 



RESTRICTIONS ON ACTION OF INTERNED. 167 

Count Cassini to Mr. Hay. 
[Translation.] 

Imperial Embassy of Russia, 

Washington, December 10, 1904- 

Mr. Secretary of State: Russia and all the Russians residing 
abroad will on the 6th/19th December celebrate the name day of His 
Majesty the Emperor, my august master. 

Captain Berlinsky, commanding officer of the transport ship Lena, 
which, as your excellency knows, lies disarmed at San Francisco until 
the end of the present war, would like to celebrate that day, which all 
Russians hold so dear, by hoisting on that solemn occasion, and for 
that day only, the national flag, dressing his ship, and firing the im- 
perial salute. I cherish the hope, Mr. Secretary of State, that the 
Federal Government will see no objection to yielding to Captain Ber- 
linsky's request and will thus afford him the opportunity of paying 
the homage of his respect and veneration to his august sovereign. 

While transmitting this request of Captain Berlinsky 's, and most 
especially commending it to your customary courtesy, I beg your 
excellency, etc., 

Cassini. 



Mr. Hay to Count Cassini. 

No. 252.] Department of State, 

Washington, December 14, 1904- 

Excellency: I have received your valued note of the 10th of 
December, in which"" you inform me that Captain Berlinsky, com- 
manding officer of the transport ship Lena, which lies disarmed at 
San Francisco until the end of the present war, would like to celebrate 
the name day of His Majesty the Emperor, which all Russians hold 
so dear, by hoisting on that solemn occasion, and for that day only, 
the national flag, dressing his ship, and firing the imperial salute. 

I have considered the matter with care and with the earnest desire 
to meet in all things your excellency's wishes. It seems, however, 
that the Lena, not being at this time a ship in active commission, lying 
in a friendly open port, but being held in the Mare Island Navy-Yard 
completely disarmed, in the custody of the United States until the end 
of the existing war, her character as a war ship, including the func- 
tion of saluting and the right to receive salutes, is in abeyance. 

Under these circumstances the anomaly and inconvenience of firing 
the suggested salute in an American navy-yard without being com- 
petent to salute the American flag and without being entitled to a 
salute in return, lead me to the conclusion that it is not practicable to 
acquiesce in that feature of Captain Berlinsky's programme. While 



168 INTERNMENT OF BELLIGERENT VESSELS. 

regretting this decision touching the salute, it affords me much pleas- 
ure to say that as to the display of the national standard and dress- 
ing the ship no inconvenience is seen in the appropriate commem- 
oration of the name day of his Imperial Majesty on board the Lena in 
all suitable ways consistent with the present status of the vessel. We 
have so informed the American admiral on that station. 

I beg, etc., 

John Hay. 
(U. S. Foreign Relations, 1904, pp. 785-790.) 

The squadron of Admiral Enquist was interned at Manila 
early in June, 1905, after the battle of the Sea of Japan 
(May 27, 1905). On June 5, 1905, the President directed 
the Secretary of War to send the following telegram to 
the governor of the Philippine Islands: 

Advise Russian admiral that as his ships are suffering from damages 
due to battle, and our policy is to restrict all operations of belligerents 
in neutral ports, the President can not consent to any repairs unless the 
ships are interned at Manila until the close of hostilities. You are 
directed, after notifying the Russian admiral of this conclusion, to turn 
over the execution of this order to Admiral Train, who has been advised 
accordingly by the Secretary of the Navy. 

The President directed' that a strict enforcement of the 
twenty-four-hour rule be applied in view of the fact that 
the damage to the ships was due to acts of the enenry in 
battle and not to the action of the elements or accidents. 
It was maintained that to allow vessels injured in battle to 
refit in a neutral port would practically make the neutral 
port a naval base for the belligerent. 

The action of the Government of the United States was 
publicly stated, as follows, in an announcement of June 6, 
1905: 

The Secretary of War is in receipt of a cablegram from Governor 
Wright announcing that Secretary Taft's instructions of yesterday had 
been formally transmitted to the Russian admiral, and at the same time 
inquiry was made whether he would be required to put to sea within 
twenty-four hours after taking on coal and provisions sufficient to take 
them to nearest port. That up to this time only enough coal and suf- 
ficient food supplies for use in harbor to last from day to day had been 
given, as they arrived in Manila with practically no coal or provisions. 
Governor Wright submitted the question as to whether they were enti- 
tled to take on coal and provisions to carry them to nearest port. Gov- 
ernor Wright was advised that the President directed that the twenty- 



GERMAN OPINION. 169 

four hours' limit must be strictly enforced; that necessary supplies and 
coal must be taken on within that time, these instructions being con- 
sistent with those of June 5, stating that as the Russian admiral's ships 
were suffering from damages due to battle the American policy was to 
restrict all operations of belligerents at neutral ports — in other words, 
that time should not be given for repairs of damages suffered in battle. 

Commander Von Uslar, of the German navy, thinks that 
the United States exceeded its measure of duty in the treat- 
ment of Admiral Enquist's squadron in the Philippines. 
He sa}^s: 

The old rules of neutrality do not restrict the stay of the ships of 
belligerents in any respect more than in times of peace. They permit 
all articles of equipment to be supplied, and any repairs to be made 
that do not immediately contribute to enhance the fighting capabili- 
ties. The new principle advanced by England in 1861, and accepted 
first by the United States and later by many other countries, limits 
the duration of the stay to twenty-four hours, and permits sufficient 
coal to be taken on board to enable the vessel to reach the nearest port 
of her own country or some nearer destination and repairs to restore 
seaworthiness. 

It can not be denied that the new rules, even if the old principle 
remains in force, are better adapted to certain cases of neutrality. A 
compromise between the two, therefore, will best suit the actual con- 
ditions created by war, if the French rules are applied in the case cf 
ports and waters which are at a distance from the sphere of operation 
of the hostile fleets and the English remain valid for ports and waters 
within or near the sphere of operations. The neutrals must have the 
right but be under no obligation to close completely certain ports and 
bays. The difficulty of this distinction lies in the conception of the 
sphere of operations. It will have to be taken to mean that portion of 
the sea on which the opposing forces permanently maneuver for the 
purpose of warlike operations. Ships which directly seek refuge from 
the enemy in neutral waters, and prizes, would have to be treated with- 
out regard to the distance from the chief theater of war. 

The extent and duration of the repairs necessary to restore sea- 
worthiness must be fixed by the neutral government. The latter must 
make no distinction between damages sustained on the voyage or by 
the action of the enemy's guns, as it would act in the interests of the 
other belligerent if it made the repairs dependent on this distinction. 
The action of the United States' Government toward the ships of 
Admiral Enquist undoubtedly exceeded the measure of duty. The 
German Government also did more at Tsingtau than duty demanded. 
Ships which do not leave the ports and waters after the expiry of the 
fixed term render themselves liable to disarmament. (North Ameri- 
can Review, Aug., 1905, vol. 181, p. 188.) 



170 INTERNMENT OF BELLIGERENT VESSELS. 

Conclusion. — The precedents of the Russo-Japanese war 
have led to the definite acknowledgment of the correctness 
of the doctrine of internment by neutral states of belliger- 
ent vessels seeking refuge from the force of the enemy in 
neutral ports. This principle has been acknowledged or 
definitely acted upon b} T China, France, Great Britain, 
Germany, Japan, United States, and Russia. These in- 
clude nearly all the states with considerable navies. 
Rarety has an} 7 principle received such general recognition 
within so short a period. 

It may be safely said that the entrance and sojourn for 
a period of more than twenty-four hours in a neutral port 
will render a belligerent vessel which is pursued by the 
enemy or damaged in battle liable to internment. 

As a neutral has full jurisdiction over his own ports and 
as entiy of the ports is a privilege granted to foreign war 
ships, the neutral has full rights to enforce by any means 
within his power the regulations which may have been 
prescribed for entrance and sojourn within his ports. 



Topic X. 

Is there sufficient ground for the recognition of certain 
acts as a distinct class under some such name as "un- 
neutral service?" 

CONCLUSION. 

The category of "unneutral service," which has been 
admitted in decisions of the courts, explained in the works 
of the text writers, described in proclamations, and dis- 
tinguished in practice, deserves and should receive full 
and explicit recognition. 

DISCUSSION AND NOTES. a 

Development of doctrine of neutrality. — It is now gen- 
erally admitted that the rights and duties of neutrals in 
time of war are correlative. It was formerly claimed that 
the denial or grant of the same privileges to both belliger- 
ents constituted neutrality. Such a doctrine of neutrality 
might make it possible for a state to deny all the privileges 
which the first party to the war would especially need and 
which the second might not need, and to grant those privi- 
leges which the second might need and which the first 
might not need. It was seen that such a position was not 
neutral in fact, if sometimes so called. Gradually a more 
equitable view has come to prevail. Neutrality is at pres- 
ent held to demand u an entire absence of participation, 
direct or indirect, however impartial it may be." 

The state is responsible for the observance of neutrality 
within its sphere of competence. The state is responsible 
for its own action or failure to act where its jurisdiction 
can reasonably be exercised. The neutral state can not be 

«A part of the following discussion appeared in the proceedings of 
the American Political Science Association, 1904, " Unneutral Service," 
George Grafton Wilson, p. 68. 

171 



172 UNNEUTRAL SERVICE. 

required to assume the burdens of prosecuting the war, 
however. If certain articles are declared contraband of 
war. the belligerent making the declaration can not claim 
that the neutral state is under obligation to prevent its 
merchants from shipping such articles from neutral ports 
in the way of ordinary trade. To demand that the neutral 
prevent the sale of many articles included within the lists 
of contraband would be to put the burden of enforcing a 
belligerent's declaration upon the neutral, and this at the 
expense of the neutral's trade. 

Neutrality is, however, binding not merely upon the 
state, but also upon the citizens of the neutral state. The 
state is responsible for its own direct or indirect participa- 
tion in any violation of neutralit}% as in the case where it 
allows its ports to be a place for the fitting out of hostile 
expeditions. It is not, however, responsible for the action 
of each of its citizens, nor can it be. The citizen is ordi- 
naril \ r informed by declaration of neutrality of the position 
which the state proposes to assume and the citizen is 
liable to certain consequences for violation of the provisions 
of the declaration. 

As regards the citizen of the neutral state, the declara- 
tion usuall} r makes known: 

1. That the citizen himself will become liable to certain 
penalties which the neutral government may inflict in case 
he performs certain acts within the jurisdiction of the 
neutral state which may lay the state open to claims of 
indemnity because of failure to observe neutrality, e. g., 
if within the jurisdiction of the neutral state he fits out 
an hostile expedition or accepts and exercises a commission 
from the belligerent. 

2. That the citizen's propert} r will become liable to cer- 
tain treatment by the enemy if he undertakes certain acts, 
e. g., carriage of contraband to the belligerent, or viola- 
tion of the blockade, when the goods or both goods and 
vessel may be seized by the belligerent. 

The penalty for the acts of the first class falls upon the 
person of the guilty neutral, and if found guilty within 
its jurisdiction the penalty is imposed by his own state. 
The penalty for acts of the second class falls upon the 



DISTINGUISHED FROM CONTRABAND. 173 

goods, or goods and vessel, and is inflicted by the belliger- 
ent. In this latter case the neutral person is not regarded 
as guilty of offense and is not made a prisoner of war. 

There is a third class of acts which partake somewhat 
the nature of the acts of the first class which are forbid- 
den and penalized by the neutral state. These are often 
committed beyond the jurisdiction and responsibility of 
the neutral state, and when undertaken by the neutral cit- 
izen do not involve the neutral state in liability unless the 
state is in some way a party to the acts. 

Various attempts have been made to bring these acts 
under one of the first two classes mentioned above. At- 
tempts also have been made to assimilate the acts to the 
carriage of contraband or violation of blockade. Some of 
the acts have been considered analogous to contraband. 
The acts of this third class differ very widely, however, 
in nature, intent, and penalty, from the carriage of con- 
traband or violation of blockade. The nature of the car- 
riage of contraband is commercial, the intent is to obtain 
exceptional profits because of the special demands of the 
state at war, and the penalt}^ is the confiscation of the con- 
traband goods. Thus considered, the idea of contraband 
becomes reasonably clear, though the applications of 
the principles underlying the doctrine of contraband 
may not always be easy in concrete instances. It is 
natural that the attempt should be made to include 
the forms of service which the neutral should not un- 
dertake under the laws of contraband, because the idea 
of contraband was clear long before there was any 
clear idea of neutrality. Grotius, in 1625, makes an 
excellent classification of contraband, upon which little 
improvement has been made. His conception of neutral- 
ity is, however, very far from the modern idea. Indeed, 
the current ideas of neutrality have for the most part 
developed within one hundred years. Many writers did 
not fully comprehend this development and tried to extend 
the old nomenclature of contraband and blockade to cover 
new conditions possessing characteristics which did not 
admit such classification. It would be a difficult problem 
so to extend the proper doctrine of contraband as to cover 



174 UNNEUTRAL SERVICE. 

certain acts which have been sometimes classed as analo- 
gous to contraband. Even while using the term "ana- 
logues of contraband/' speaking of the analog}- which the 
carriage of military dispatches and persons possesses to 
the carriage of articles contraband of war, admits that it 
is "always remote." 

One of the acts most frequently classed as analogous to 
the carriage of contraband is the carriage of dispatches 
for the enemy. Upon this subject there has been much 
discussion, especially since the attempted defense of the 
action of the United States in the case of the Trent in 
1861. 

British opinions distinguishing service from, contra- 
band. — The difference between the carriage of contraband 
and the aid afforded by the transmission of information 
was early recognized by Sir William Scott. He, in the 
case of the Atalanta in 1808, said: 

If a war intervenes and the other belligerent prevails to interrupt 
that communication (between mother country and colony), any per- 
son stepping in to lend himself to effect the same purpose, under the 
privilege of an ostensible neutral character, does in fact place himself 
in the service of the enemy state, and is justly to be considered in that 
character. Nor let it be supposed that it is an act of light and casual 
importance. The consequence of such a service is indefinite, infinitely 
beyond the effect of any contraband that can be conveyed. The 
carrying of two or three cargoes of stores is necessarily an assistance 
of limited nature; but in the transmission of dispatches may be con- 
veyed the entire plan of the campaign that may defeat all the projects 
of the other belligerent in that quarter of the world. * * * The 
practice has been, accordingly, that it is in considerable quantities 
only that the offense of contraband is contemplated. The case of dis- 
patches is very different; it is impossible to limit a letter to so small a 
size as not to be capable of producing the most important consequences 
in the operations of the enemy. It is a service, therefore, which, in 
whatever degree it exists, can only be considered in one character, as 
an act of the most noxious and hostile nature. (6 C. Rob., 440.) 

This opinion of the great English jurist, rendered early 
in the nineteenth century, shows that the transmission of 
dispatches of varying character can not properly be put 
in the same category- with contraband because so different 
in nature and results. 



BRITISH OPINIONS. 175 

In other cases Great Britain has recognized that penal- 
ties ma}' attach directl} T to service. 

In the case of Burton v. Pinkerton, in Great Britain, in 
1867, it was held— 

That to serve on board a vessel used as a storeship in aid of a 
belligerent, the fitting out of which to be so used is an offense within 
the seventh section, is "serving on board a vessel for a warlike pur- 
pose in aid of a foreign state," within the second section. (L. R. Q. 
Exch., 340.) 

The vessel in question was the Thames, which was serv- 
ing as a storeship for Peruvian war vessels in the war 
between Peru and Spain. 

By section 8 of the foreign enlistment act, 1870, " if any 
person within Her Majesty's dominions, without Her 
Majesty's license, dispatches any- ship with intent that the 
same shall be employed in the military or naval service of 
any foreign state at war with any friendly state, the ship 
in respect of which any such offense is committed and her 
equipment shall be forfeited to Her Majesty." 

Recent British opinions. — The British authorities, in 
1904, reaffirmed positions previously taken. The} 7 recog- 
nized such acts as different in nature from the carriage of 
contraband, and as involving different penalties. The 
acts were regarded as practically acts in the naval service 
of one of the belligerents. This is seen in the following 
letter, which was, by direction of the Marquis of Lans- 
downe, addressed to the Chamber of Shipping of the 
United Kingdom, to the Association of Chambers of Com- 
merce of the United Kingdom, and to certain other asso- 
ciations : 

Foreign Office, November 25, 1904. 

Sir: On the 25th ultimo a letter was received by the foreign office 
from Messrs. Woods, Tyler & Brown, asking whether it was permis- 
sible "for British shipowners to charter their boats for such purposes 
as following the Russian fleet with coal supplies;" and by the Mar- 
quis of Landsowne's directions they were informed that " it is not per- 
missible for British owners to charter their vessels for such a purpose." 

In view of the numerous inquiries which have been addressed to 
His Majesty's Government on this subject, I am instructed to explain 
that action of the kind described in Messrs. Woods' letter might ren- 
der those concerned liable to proceedings under subsections 3 and 4 of 



176 UNNEUTRAL SERVICE. 

the eighth section of " the foreign enlistment act, 1870." (33 and 34 
Vict., cap. 90. ) This section, so far as it is material, runs as follows: 

"8. If any person within Her Majesty's dominions, without the 
license of Her Majesty, does any of the following acts, that is to say — 

" (3) Equips any ship with intent or knowledge, or having reason- 
able cause to believe that the same shall or will be employed in the 
military or naval service of any foreign state at war with any friendly 
state; or 

" (4) Dispatches, or causes or allows to be dispatched, any ship with 
intent or knowledge, or having reasonable cause to believe that the 
same shall or will be employed in the military or naval service of any 
foreign state at war with any friendly state; 

" Such person shall be deemed to have committed an offense against 
this act, and the following consequences shall ensue: 

"(1) The offender shall be punishable by tine and imprisonment, 
or either of such punishments, at the discretion of the court before 
which the offender is convicted; and imprisonment, if awarded, may 
be either with or without hard labor. 

"(2) The ship in respect of which any such offense is committed, 
and her equipment, shall be forfeited to Her Majesty." 

The interpretation clause, section 30, defines "naval service" and 
"equipping" as follows: 

"'Naval service' shall, as respects a person, include service as a 
marine, employment as a pilot in piloting or directing the course of a 
ship of war or other ship, when such ship of war or other ship is being 
used in any military or naval operation, and any employment what- 
ever on board a ship of war, transport, storeship, privateer, or ship 
under letters of marque; and as respects a ship include any user of a 
ship as a transport, storeship, privateer, or ship under letters of 
marque. 

" 'Equipping' in relation to a ship shall include the furnishing a 
ship with any tackle, apparel, furniture, provisions, arms, munitions, 
or stores, or any other thing which is used in or about a ship for the 
purpose of fitting or adapting her for the sea or for naval service, and 
all words relating to equipping shall be construed accordingly. 

"'Ship and equipment' shall include a ship and everything in or 
belonging to a ship." 

A similar question arose in 1870 during the Franco-German war, 
and on the 1st of August of that year a question on the subject was 
put to and was answered by Mr. Gladstone, then prime minister. 
The foreign enlistment act then in force was that of 1819 (59 Geo. 
HI, cap. 69), containing provisions similar upon this point to those of 
the act of 1870, which was about to replace it and which received the 
royal assent on the 9th of August. The question and answer were as 
follows: 

"Mr. Stapleton asked the first lord of the treasury whether his 
attention has been called to the report that the French fleet in the 
Baltic is to be supplied with coal direct from this country; whether it 



AMERICAN OPINIONS. 177 

would be consistent with neutrality to allow any vessels, either French, 
English, or others, to carry coal direct from this country to a bel- 
ligerent fleet at sea; and whether English vessels so engaged would be 
entitled to the protection of their country if the other belligerent 
should treat them as enemies, considering them part of the armament 
to which they were acting as tenders. 

"Mr. Gladstone replied: 'Sir, the House has already been apprised 
on more than one occasion that there is nothing in a generalway to 
prevent the exportation of coal from this country. If either of the 
belligerents capture those vessels supplying coal, the question whether 
it is contraband of war will be a question for the consideration of the 
court of the captors. But the honorable gentleman has called atten- 
tion to a particular case, and although the exportation of coal is not 
generally prohibited, exporters being warned that if it be supplied to 
either of the belligerents they run the risk of capture, yet of course 
the case reported, which I can neither affirm nor deny, as I have no 
more knowledge of it than he has — that is to say, the knowledge 
derived from general rumor — presents itself under a somewhat differ- 
ent aspect, and in that form the question has been referred to the law 
officers of the Crown. They have given their opinion, which w r e have 
adopted, that if colliers are chartered for the purpose of attending the 
fleet of a belligerent, and supplying that fleet with coal for the purpose 
of enabling it to pursue its hostile operations, such colliers would to all 
practical intents and purposes become storeships to that fleet, and if 
that fact were established they would be liable, if within reach, to the 
operation of the English law under the provisions of the foreign- 
enlistment act. It will be the duty of the Government, and they will 
act upon that duty when such reports arise, to institute searching 
inquiries into the existence of any such case. ' ' ' 

Although, therefore, neutral traders may carry on trade even in 
contraband with belligerents, subject to the risk of capture of their 
goods, it is necessary that such traders should bear in mind the condi- 
tion of the law of this country as set forth in the foregoing enactments, 
which, moreover, have been applied recently by orders in council in 
British protectorates and also in countries where the King exercises 
extraterritorial jurisdiction over his own subjects. 

I am, etc., 

(Signed) F. A. Campbell. 

American opinions distinguishing service from contra- 
band. — The United States courts as well as the British 
courts have recognized the difference in nature between 
commerce in contraband and commerce undertaken in the 
enemy's employ. 

In the case of the Julia, Story rendered the opinion of 
the United States Supreme Court in 1814, to the effect 
"that the sailing on a voyage under the license and pass- 
16843—06 12 



178 UNNEUTRAL SERVICE. 

port of the enemy, in furtherance of his views or interests, 
constitutes such an act of illegality as subjects the ship 
and cargo to confiscation as prize of war." (8 Cranch, 181.) 

The opinion rendered in the case of the Julia was sub- 
sequently followed with approval in other cases. (The 
Aurora, 8 Cranch, 203; the II! nun. 8 Cranch, 444; the 
Ariadne, 2 Wheaton, 148.) In all these cases subjects of 
one of the belligerents accept the service of the other and 
sail under his license. The principle applies equally to a 
neutral accepting such service for one of the belligerents. 

Indeed, it may not be necessary that the master of a ves- 
sel be a knowing party to the undertaking which aids the 
enemy. Lord Stowell has held that 4, It will be sufficient, 
if there is injury arising to the belligerent from the em- 
ployment in which the vessel is found. The master may 
be ignorant and perfectly innocent. But if the service is 
injurious, that will be sufficient to give the belligerent the 
right to prevent the thing from being done." (6 Rob. , 430) 

Not merely in court decisions, but in the opinions of 
text writers, distinctions are made in the acts of neutrals. 

Dana, in note 228 to Wheaton, speaking of the carrying 
of hostile persons or papers, in contrast to contraband, 
says : 

But the subject now under consideration is of a different character. 
It does not present cases of property or trade, in which such interests 
are involved, and to which such considerations apply, but simply 
cases of personal overt acts done by a neutral in aid of a bellig- 
erent. * * * 

Suppose a neutral vessel to transmit signals between two portions of 
a fleet engaged in hostile combined operations, and not in sight of 
each other. She is doubtless liable to condemnation. It is imma- 
terial whether these squadrons are at sea or in ports of their own 
country or in neutral ports, or how far they are apart or how impor- 
tant the signals actually transmitted may be to the general results of the 
war, or whether the neutral transmits them directly or through a 
repeating neutral vessel. The nature of the communication establishes 
its final destination, and it is immaterial how far the delinquent carries 
it on its way. The reason of the condemnation is the nature of the 
service in which the neutral is engaged. (Wheaton, D., International 
Law, note 228. ) 

The distinctions clearly made in the earl} T half of the 
nineteenth century seem to have been somewhat neg- 



CONTINENTAL OPINIONS. 179 

lected in the latter half, and from this neglect confusion 
in treatment and forced constructions have arisen. 

Recent continental opinion. — Kleen, writing of this at- 
tempt to extend the doctrine of contraband to cover 
services, persons, etc., says: 

Quelquefois ont ete ranges parmi les articles de contrebande de 
guerre certains objets qui n'y appartiennent pas, bien que leur trans- 
port pour le compte ou a destination d'un belligerant puisse etre in- 
terdit. Non seulement chez des publicistes mais aussi dans des lois et 
traites, certaines personnel et communications sont considerees comme 
une espece de contrebande, du moment qu'elles ont ete apportees a 
un ennemi ou transporters a cause de lui, de maniere a le renforcer ou 
Taider dans la guerre, soit materiellement soit meme intellectuelle- 
ment. C'est ainsi que se rencontrent depuis longtemps sur les listes 
de contrebande des objets tels que "soldats," "troupes," etc., der- 
nierement aussi "documents." 

Comme toutefois cet elargissement de la notion de la contrebande 
de guerre se conciliait peu avec la terminologie juridique, les person- 
nes et les correspondances n'etant ni des marchandises ni des muni- 
tions, tandis que la contrebande a ete de tout temps definie comme 
telles, les choses ainsi intruses dans sa categorie n'y furent pas tou- 
jours rangees de la mane facon que les autres objets prohibes, ni sans 
restriction. Parfois, il est vrai, on les trouve simplement inserees 
dans les listes comme des articles de contrebande ordinaires. Mais 
d' autres fois elles y sont ajoutees ( " assimilees " ) sous d'autres de- 
nominations, un peu modifiees, par exemple sous la N qualification de 
contrebande improprement dite ou dans le sens figure, " quasi-contre- 
bande," "analogues de la contrebande," etc. (La Neutral ite, vol. 1, 
p. 452. ) 

Pillet, after speaking of contraband in the ordinary 
sense, says: 

La theorie de la contrebande a trouve sa place dans une derniere 
hypothese bien differente de celles que nous avons considerees jusqu'ici. 
C'est dans le cas ou un navire neutre transporte pour le compte de 
1' ennemi des troupes, des depeches, ou certains hauts fonctionnaires, 
des ambassadeurs par exemple. On appelle ce transport contrebande 
par analogic L'analogie, il faut ici le reconnaitre, est assez lointaine; 
il ne s'agit plus de marchandises mais de personnes, et la sanction du 
transport illicite ne peut consister que dans la seule condamnation du 
vaisseau. (Les Lois Actuelles de la Guerre, par. 218, p. 330. ) 

Names given to service. — Whatever the name, a consider- 
able range of actions involving neither the doctrine of con- 
traband nor the doctrine of blockade should have some 
distinguishing name. Various names have been from time 



180 UNNEUTRAL SERVICE. 

to time given to some of these actions, such as " acciden- 
tal contraband," " analogues of contraband," " enenry serv- 
ice," "unneutral service," etc. The terms involving the 
use of the word "contraband" are admittedly inappropri- 
ate and forced. The term "enemy service" would be am- 
biguous because often used in a sense not involving any of 
the actions here discussed. The phrase "unneutral serv- 
ice" seems to be the least ambiguous and most distinctly 
descriptive. The decisions of the courts and the opinions 
of the writers point clearly to the fact that it is the nature 
of the service which must be considered in certain cases, 
while the nature and destination of the goods in case of 
contraband, and the military condition of the place in the 
case of blockade, determines the penalties. 

Unneutral service and contraband. — Professor Lawrence 
recently very properly pointed out that: "In truth be- 
tween the carrying of contraband and the performance of 
what we may- call unneutral service there is a great gulf 
fixed." (Principles of International Law, p. 624.) 

We are now in a position to distinguish clearly between the offense 
of carrying contraband and the offense of engaging in unneutral serv- 
ice. They are unlike in nature, unlike in proof, and unlike in penalty. 
To carry contraband is to engage in an ordinary trading transaction 
which is directed toward a belligerent community simply because a 
better market is likely to be found there than elsewhere. To per- 
form unneutral service is to interfere in the struggle by doing in aid 
of a belligerent acts which are in themselves not mercantile but war- 
like. In order that a cargo of contraband may be condemned as a 
good prize, the captors must show that it was on the way to a bel- 
ligerent destination. If without subterfuge it is bound to a neutral 
port the voyage is innocent, whatever may be the nature of the 
goods. In the case of unneutral service the destination of the cap- 
tured vessel is immaterial. The nature of her mission is the all-im- 
portant point. She may be seized and confiscated when sailing 
between two neutral ports. The penalty of carrying contraband is 
the forfeiture of the forbidden goods, the ship being retained as prize 
of war only under special circumstances. The penalty for unneu- 
tral service is first and foremost the confiscation of the vessel, the 
goods on board being condemned when the owner is involved or when 
fraud and concealment have been resorted to. 

Nothing but confusion can arise from attempting to treat together 
offenses so widely divergent as the two now under consideration. 
Ibid., p. 633. 



FORMS OF UNNEUTRAL SERVICE. 18l 

Dupuis distinguishes the penalty for carriage of contra- 
band and that for unneutral service. He says: 

S'agit-il de contrebande de guerre, c'est d'ordinaire une simple aven- 
ture commerciale que tente l'expediteur et que sert le navire charge 
du transport, pour tous deux, le mobile habituel est Pinteret, Pespoir 
d'un benefice a, realiser. S'agit-il de transports de troupes, d' agents ou 
de depeches ennemis, Pordre d' envoi est du a de tout autres motifs; 
ce sont des considerations de guerre qui le dictent; le navire qui P exe- 
cute ne se fait pas P instrument d'une affaire dont le contre-coup 
n'atteint qu'indirectement Pennemi; il se fait le complice d'un actede 
guerre dirige contre lui. Si Pattrait du gain peut etre Punique mobile 
de sa complicate, il n'en reste pas moins que aide qu'il procure a Pun 
des belligerants est d'un tout autre ordre que le transport de contre- 
bande de guerre; il revet un caractere plus grave et une teinte d'hos- 
tilite beaucoup plus accentuee. C'est assez pour modifier la nature de 
P infraction et pour justifier une sanction plus rigoureuse. 

Autorisees par la gravite de Pacte, les severites plus grandes de la 
repression sont d'ailleurs commandees par des necessites pratiques. 
II est plus aise de dissimuler la presence a bord d' agents ou de depeches 
que celle de marchandises de contrebande; P infraction est d'autant 
plus facile a commettre que la surveillance est plus facile a dejouer; il 
faut, pour en detourner, que le risque moins grand d'etre decouvert 
soit compense par le risque plus redoutable d'une sanction plus rude 
en cas de surprise. Aussi ne se contentet-on pas d'empecher troupes, 
agents ou depeches surpris de parvenir a destination; la confiscation 
frappe, en principe au moins, le navire qui les porte. (La Guerre 
Maritime et les Doctrines Anglaises, p. 282. ) 

Fwms of unneutral service. — As states have drawn nearer 
together through the elimination of the barriers of time 
and space in matters of communication, the possibilities of 
unneutral service have greatly multiplied. It would not 
be possible to be neutral in modern days and to maintain 
with Grotius that "'it is the duty of those who have no 
part in the war to do nothing which may favor the party 
having an unjust cause, or which may hinder the action 
of the one waging a just war, * * * and in a case of 
doubt to treat both belligerents alike, in permitting tran- 
sit, in furnishing provisions to the troops, in refraining 
from assisting the besieged." (De Jure Belli ac Pacis. 
Lib. Ill, C. XVI, iii, i.) 

Modern neutrality proclamations have by various cir- 
cumlocutions tried to prohibit acts involving assistance by 
neutral subjects in the performance of warlike acts. The 



182 UNNEUTRAL SERVICE. 

proclamation of the United States of February' 11, 1904, 
issued in consequence of the Russo-Japanese war, after 
recognizing the general principle, " free ships, free goods, 
except contraband of war. and free goods always free, 
except contraband of war," in a qualified wa} T warns its 
citizens against unneutral service, saving " that while all 
persons may lawfully, and without restriction because of 
the aforesaid state of war, manufacture and sell within the 
United States 'arms and munitions of war,' and other 
articles ordinarily known as ' contraband of war,' yet they 
can not carry such articles upon the high seas for the use 
or service of either belligerent, nor can they transport 
soldiers and officers of either, or attempt to break any 
blockade which may be lawfully established and main- 
tained during the war without incurring the risk of hostile 
capture and the penalties denounced by the law of nations 
in that behalf." 

The distinction is clearly made in the same war in the 
proclamation of the Netherlands Government to its citizens 
in which " their attention, and especially that of captains, 
shipowners, and ship brokers, is directed to the danger 
and risks consequent on the nonobservance of efficient 
blockade of the belligerent parties, the conveyance for 
them of contraband of war or military dispatches (unless 
in the wa} r of regular postal service), and the execution 
of any other transport service in their interest." The 
"Instructions to Blockading Vessels and Cruisers" issued 
by the Navy Department of the United States, June 20, 
1898, as General Order, No. 492, section 16, provides that 
"a neutral vessel in the service of the enem} r in the trans- 
portation of troops or military persons is liable to seiz- 
ure;" and in section 15, that "a neutral vessel carrying 
hostile dispatches, when sailing as a dispatch vessel prac- 
tically in the service of the enemy, is liable to seizure, 
but not when she is a mail packet and carries them in the 
regular and customary manner." 

Hall has given considerable attention to what he terms 

"'analogues of contraband." He says: 

With the transport of contraband merchandise is usually classed 
analogically that of dispatches bearing on the conduct of the war and 



RUSSIAN" OPINION. 183 

of persons in the service of a belligerent. It is, however, more correct 
and not less convenient to place adventures of this kind under a dis- 
tinct head, the analogy which they possess to the carriage of articles 
contraband of war being always remote. They differ from it in some 
cases by involving an intimacy of connection with the belligerent 
which can not be inferred from the mere transport of contraband of 
war, and in others implying a purely accidental and almost involuntary 
association with him. They are invariably something distinctly more 
or something distinctly less than the transport of contraband amounts 
to. When they are of the former character they may be undertaken 
for profit alone, but they are not in the way of mere trade. The 
neutral individual is not only taking his goods for sale to the best 
market, irrespectively of the effect which their sale to a particular 
customer may have on the issue of the war, but he makes a specific 
bargain to carry dispatches or persons in the service of the belligerent 
for belligerent purposes. He thus personally enters the service of the 
belligerent, he contracts as a servant to perform acts intended to affect 
the issue of the war, and he make himself in effect the enemy of the 
other belligerent. (Hall, International Law, 5th ed., p. 673.) 

A neutral vessel becomes liable to the penalty appropriate to the 
carriage of persons in the service of a belligerent, either when the 
latter has so hired it that it has become a transport in his service and 
that he has entire control over it; or when the persons on board are 
such in number, importance, or distinction, and at the time the 
circumstances of their reception are such as to create a reasonable 
presumption that the owner or his agent intend to aid the belligerent 
in his war. 

In the transport of persons in the service of a belligerent the essence 
of the offense consists in the intent to help him; if, therefore, this 
intent can in any way be proved, it is not only immaterial whether 
the service rendered is important or slight, but it is not even necessary 
that it shall have an immediate local relation to warlike operations. 
(Hall, International Law, 5th ed., p. 676.) 

The Russian declaration of February 14, 1904, section 
7, states that — 

There are assimilated to contraband of war the following acts, for- 
bidden to neutrals: The transport of enemy troops, the dispatches or 
correspondence of the enemy, the furnishing of transports or ships of 
war to the enemy. Neutral vessels guilty of forbidden acts of this 
character may be, according to circumstances, seized and confiscated. 

The position taken by Russia is entirely justifiable, and 
the persons concerned in the service become prisoners of 
war. Hall sets forth the contrast as follows: 

It will be remembered that in the case of ordinary contraband trade 
the contraband merchandise is confiscated, but the vessel usually 



184 UNNEUTRAL SERVICE. 

suffers no further penalty than loss of time, freight, and expenses. 
In the case of transport of dispatches or belligerent persons the dis- 
patches are of course seized, the persons become prisoners of war, and 
the ship is confiscated. The different treatment of the ship in the 
two cases corresponds to the different character of the acts of its 
owner. For simple carriage of contraband the carrier lies under no 
presumption of enmity towards the belligerent, and his loss of freight, 
etc., is a sensible deterrent from the forbidden traffic; when he enters 
the service of the enemy seizure of the transported objects is not 
likely to affect his earnings, while at the same time he has so acted as 
fully to justify the employment towards him of greater severity. 
(Hall, International Law, 5th ed., p. 678.) 

Halleck (International Law, 3d ed., Baker, Vol. II, 
Ch. XXV) says of a place blockaded in distinction from a 
place besieged: 

But there is an important distinction, with respect to neutral com- 
merce, between a maritime blockade and military siege. The object 
of a blockade is solely to distress the enemy, intercepting his com- 
merce with neutral states. It does not, generally, look to the surren- 
der or reduction of the blockaded port, nor does it necessarily imply 
the commission of hostilities against the inhabitants of the place. 
The object of a military siege is, on the other hand, to reduce the 
place, by capitulation or otherwise, into the possession of the besiegers. 
It is by the direct application of force that this object is sought to be 
attained, and it is only by forcible resistance that it can be defeated. 
Hence every besieged place is for the time a military post, ior even 
when it is not defended by the military garrison its inhabitants are 
converted into soldiers by the necessity of self-defense. This distinc- 
tion is not merely nominal, but, as will be shown hereafter, leads to 
important consequences in determining the rights of neutral commerce 
and in deciding questions of capture. 

It might be inferred by parity of reasoning that when a port is 
under a military siege neutral commerce might still be lawfully 
carried on by sea, through channels of communication which could 
not be obstructed by the forces of the besieging army. But such 
inference would not be strictly correct, for the difference between a 
blockade and a siege, in their character and object, have led to a dif- 
ference in the rules applicable in the two cases to neutral commerce. 
Although the legal effects of a siege on land that is purely a military 
investment of a naval or commercial port may not be an entire prohi- 
bition of neutral commerce, yet it does not leave the ordinary com- 
munications by sea open and unrestricted, as a purely maritime block- 
ade leaves the interior communications by land. The primary object 
of a blockade is, as we have already said, to prohibit commerce; but 
the primary object of a siege is the reduction of the place. All 



SUBMARINE AND WLRELESS TELEGRAPH. 185 

writers on international law impose upon neutrals the duty of not 
interfering with this object. To supply the inhabitants of a place 
besieged with anything required for immediate use, such as provisions 
and clothing, might be giving them aid to prolong their resistance. 
It is, therefore, a clear departure from neutral duty to furnish sup- 
plies, even of possible utility, to a port in a state of siege, although 
communication by sea may be open. It would be a direct interfer- 
ence in the war, tending to the relief of one belligerent and to the 
prejudice of the other; and such supplies are justly deemed contra- 
band of war, to the same extent as if destined to the immediate use of 
the army or navy of the enemy. Hence, although the prohibition of 
neutral commerce with a port besieged be not entire, yet it will 
extend to all supplies of even possible utility in prolonging the siege. 

From the discussion thus far it is evident that the forms 
of unneutral service which have been hitherto most com- 
mon are — 

1. Carriage of enemy dispatches or correspondence. 

2. Carriage of enemy persons. 

3. Enenty transport service. 

In recent wars, auxiliary coal, repair, supply, cable 
ships and the like have become of great value. Neutrals 
may easily engage in such service, and it would be very 
difficult to extend the doctrine of contraband or of block- 
ade so as to cover their action. 

While it might be possible to extend the doctrine of 
contraband to cover the carriage of certain enemy persons 
and dispatches, it would be very difficult to extend it so as 
to cover the service which might be rendered to the enemy 
by a submarine cable or by the wireless telegraph. Of 
the use of the submarine cable Capt. C. H. Stockton, U. S. 
Navy, says: 

Besides the contraband character of the material of a telegraph 
cable, in use or en route, as an essential element of belligerent commu- 
nication which renders it liable to seizure anywhere out of neutral 
territory, there is another phase of this question, and that is in regard 
to the nature of the service afforded by such a communication by a 
neutral proprietor to a belligerent. 

This service is in the nature of both an evasion of a blockade and, 
what has been termed of late years, of unneutral service. It does not 
matter in this phase whether the cable be privately or state owned, so 
far as the technical offense is concerned, though the gravity and con- 
sequences are naturally much more serious in the latter case. Let us 



186 UNNEUTRAL SERVICE. 

take, as an instance, the case of a blocked or besieged port, as Habana 
or Santiago were during the late hostilities. The communication of 
information or of dispatches, or of means of assistance which can be 
made by such means, is an unneutral service, and would resemble 
also the violation of blockade by a neutral vessel carrying dispatches, 
the capture of which on the high seas outside of territorial jurisdiction 
would be a justifiable and indisputable act of war. 

Extend this to a country or port not blockaded or besieged, and you 
would yet find the cable owned, let us presume, by a neutral, the 
means of performing the most unneutral kind of service, of a nature 
which, done by a ship, would most properly cause its seizure, con- 
demnation, or destruction by the offended belligerent. (Proceedings 
U. S. Naval' Institute, Vol. XXIV, 3, p. 453.) 

Pilotage by a neutral of an enemy vessel, the repetition 
of signals for the benefit of the enem}' by any means, "to 
supply the inhabitants of a place besieged with an} 7 thing 
required for immediate use" (Halleck, International Law; 
Baker, Vol. II, Chap. XXV), and many other acts, the 
number of which will continually increase with the devel- 
opment of means of communication, and transmission must 
be provided against by something beyond the laws of con- 
traband and of blockade. 

British Manual. — Chapter VII of the British Manual 
of Naval Prize Law is upon "Neutral vessels, acting in 
the service of the enemy." Holland makes the note on 
this title of the chapter that — 

Vessels engaged in the carriage for the enemy of military persons 
or dispatches have sometimes been described as engaged in the 
carriage of "Contraband." See the note to Friendship, 6 Rob., 420. 
It is conceived that this use of the term is misleading. 

The regulations of this chapter are as follows: 

ACTING AS A TRANSPORT. 

88. A Commander should detain any Neutral Vessel which is being 
actually used as a transport for the carriage of soldiers or sailors by 
the Enemy. 

89. The Vessel should be detained, although she may have on 
board only a small number of Enemy Officers, or even of Civil Officials 
sent out on the public service of the Enemy, and at the public expense. 

90. The carriage of Ambassadors from the Enemy to a Neutral State, 
or from a Neutral State to the Enemy, is not forbidden to a Neutral 
Vessel for the detention of which such carriage is therefore no cause. 



CONCLUSION. 187 

EXCUSES TO BE DISREGARDED. 

91. It will be no excuse for carrying Enemy Military Persons that 
the Master is ignorant of their character. 

92. It will be no excuse that he was compelled to carry such Persons 
by Duress of the Enemy. 

LIABILITY OF VESSEL, WHEN IT BEGINS, WHEN IT ENDS. 

93. A Vessel which carrys Enemy Military Persons becomes liable 
to detention from the moment of quitting Port with the Persons on 
board and continues to be so liable until she has deposited them. After 
depositing them the Vessel ceases to be liable. 

PERSONS NOT TO BE REMOVED. 

94. The Commander will not be justified in taking out of a Vessel 
any Enemy Persons he may have found on board and then allowing 
the Vessel to proceed; his duty is to detain the Vessel and send her in 
for Adjudication, together with the Persons on board. 

PENALTY. 

95. The penalty for carrying Enemy Military Persons is the con- 
fiscation of the Vessel and of such part of the Cargo as belongs to her 
Owner. 

Conclusion. — Such acts, as mentioned in the British 
Manual, and many others, are in the nature of unneutral 
service. Under some title — and "unneutral service" 
seems better than any thus far proposed — these acts must 
be recognized as in a distinct category. Their nature is hos- 
tile, because such service should primarily be performed 
by belligerent agents and agencies. The neutral agent in 
undertaking the act identifies himself with the belligerent 
to an extent which makes him liable to the treatment 
accorded to the belligerent. He is therefore liable to 
capture as an enemy, and his goods are liable to the treat- 
ment accorded to the enemy under similar conditions. 
The agent may be made a prisoner of war, and the agency 
may be seized, confiscated, or, in certain instances, so 
treated as to render it incapable of further rendering 
unneutral service. 

The clear recognition of this category of unneutral serv- 
ice which is gradually manifest will in a measure remove 



188 UNNEUTRAL SERVICE. 

the confusion resulting from certain forced interpretations 
of principles of international law. Such principles, as 
those of contraband and blockade, were formulated at a 
period when modern ideas of neutrality were unknown 
and when such ideas, if advocated, would perhaps have 
been regarded as entirely visionary. Acts which differ in 
nature, in intent, and in penaltv, as do acts involving con- 
traband or blockade from those involving unneutral serv- 
ice, should no longer be confused. The category of u un- 
neutral service " which has been admitted in decisions of 
the courts, explained in the works of the text writers, 
described in proclamations, and distinguished in practice, 
deserves and should receive full and explicit recognition. 



APPENDIX. 



A TRANSLATION OF THE JAPANESE REGULATIONS 

GOVERNING CAPTURES AT SEA, WHICH WERE 

PUBLISHED MARCH 7, 1904, WITH AN 

AMENDMENT TO THE LIST OF 

CONTRABAND PUBLISHED 

FEBRUARY 9, 1905. 



189 



JAPANESE REGULATIONS GOVERNING 
CAPTURES AT SEA. 



Regulations governing captures at sea have been settled as follows, 
and shall be enforced from the fifteenth day of the third month of 
the thirty -seventh year of Meiji (March 15, 1904). 

General Headquarters, 
Seventh day of the third month of the thirty-seventh year of Meiji. 

REGULATIONS GOVERNING CAPTURES AT SEA. 
Chapter I. — General rules. 

Article I. H. I. J. M.'s ships are authorized in time of war to visit, 
search, and capture vessels according to these regulations. 

Art. II. No visit, search, or capture shall be made in neutral waters 
nor in waters clearly placed by treaty stipulations outside the zone of 
hostile operations. 

Art. III. The national character of a person shall be decided by 
the place of his actual residence, whatever his nationality may be. 

Art. IV. By the place of residence is meant the place where a per- 
son permanently lives; in the case of a merchant, the place where he 
principally carries on his business; and in the case of a consul who is 
engaged in mercantile business, the place where he carried on that 
business. 

Art. V. The district temporarily occupied by the enemy shall not 
be considered enemy territory in respect to the national character 
of persons, ehips, and their cargoes. 

Art. VI. The following are enemy vessels: 

1. Vessels employed by the enemy, including the case in which 
such employment is compulsory. 

2. Vessels voyaging under the enemy's flag or with license of the 
enemy. 

3. Vessels, the whole or part of which is owned by the enemy State 
or its subjects. Vessels that have certificates of nationality as Japanese, 
or that voyage under the license of Japan, do not, however come 
under this rule. 

191 



192 APPENDIX. 

4. Vessels, the ownership of which has been transferred before the 
war, but in expectation of its outbreak or during the war, by the 
enemy State or its subjects to persons having residence in Japan or a 
neutral State, unless there is proof of a complete and bona fide trans- 
fer of ownership. 

In case the ownership of a vessel is transferred during its voyage, 
and actual delivery is not effected, such transfer of ownership shall 
not be considered as complete and bona fide. 

Art. VII. Japanese vessels are those which are mentioned below 
and which do not come under the preceding article: 

1. Those which have the certificate of nationality of the Empire or 
those which voyage under the license of the Imperial Government. 

2. Vessels owned by persons who have residence in the Empire. 

3. A vessel, the ownership of which has been transferred before the 
war but in expectation of its outbreak or during the war by a person 
who has residence in the Empire to a person who has residence in a 
neutral State, unless there is proof of a bona fide and complete trans- 
fer of the ownership of the vessel. 

In case the ownership of a vessel is transferred during its voyage, 
and its delivery is not effected, such transfer shall not be considered 
as bona fide and complete. 

Art. VIII. The national character of a cargo shall be decided by 
the national character of the owner. 

Art. IX. In the following cases the cargo shall be considered enemy 
property, in spite of the above regulations: 

1. A cargo consigned before the war but in expectation of its out- 
break or during the war by a person who has residence in the Empire 
or in a neutral State or by his representative to the enemy State or 
to a subject of the enemy State or to his representative. 

2. A cargo, the ownership of which has been transferred before the 
war but in expectation of its outbreak or during the war by the enemy 
State or its subject to a person who has a residence in the Empire or 
in a neutral State, unless there is proof of full and bona fide transfer. 

In case the ownership of a cargo is transferred during a voyage, and 
actual delivery is not effected, such transfer shall not be considered 
bona fide and full. 

Art. X. Concerning matters not provided for in the law, treaties, 
and these regulations, the rules of international law shall be applied. 

Chapter II. — Contraband j>ersons, papers, <md goods. 

Art. XI. Contraband persons are the enemy's military men and 
others who are being transported to be employed for hostile purposes. 

Art. XII. Contraband papers are all official correspendence of the 
officers of the enemy's Government, 

Official correspondence between the enemy's Government and its 
ministers and consuls residing in neutral States, and official corre- 
spondence between the enemy's Government and the Government of 
neutral States are not, however, contraband. 



APPENDIX. 193 

Art. XIII. The following goods are contraband of war when they 
are destined to the enemy's territory or to the enemy's army or navy: 

Arms, ammunition, explosives, and materials (including also lead, 
saltpeter, sulphur, etc.), and machines for manufacturing them, 
cement, uniforms and equipment for army and navy, armor plates, 
materials for building ships and their equipments, and all articles to be 
used solely for hostile purposes. 

Art. XIV. The following goods are contraband of war in case they 
are destined to the enemy's army or navy, or in case they are des- 
tined to the enemy's territory and from the landing place it can be 
inferred that they are intended for military purposes: 

Provisions and drinks, clothing and materials for clothing,^ horses, 
harnesses, fodder, wheeled vehicles, coal, and other kinds of fuel, a tim- 
ber, currency, gold and silver bullion, materials for telegraph, tele- 
phone, and railroad. 

Art. XV. The destination of a vessel is generally considered as 
also the destination of her cargo. 

Art. XVI. In case a vessel is bound for a place not in the enemy's 
territory, but if her intermediate port of call is an enemy's port, or in 
case there is reason to believe the vessel is to meet enemy's ships 
during the voyage, the destination of such vessels shall be considered 
as enemy's territory. 

Art. XVII. If a vessel bound for a port not in the enemy's terri- 
tory carries a cargo which there is reason to believe is to be trans- 
ported to the enemy's territory, such voyage shall be considered as 
continuous and the ship as destined to the enemy's territory from the 
first, whether she arrive at the port and land her cargo or not. 

Art. XVIII. Of the goods mentioned in Articles XIII and XIV, if 
it is clear from their quantity and quality that they are intended for 
the vessel's own use. such goods shall not be considered contraband 
of war. 

Art. XIX. If any vessel is suspected to have in her cargo contra- 
band of war the captain of the war vessel shall inspect the bill of lad- 
ing, clearance, and other papers, interrogate the crew of the vessel, 
and ascertain her destination. 

Chapter III. — Ship' 's papers. 

Art. XX. Ship's papers generally consist of the following docu- 
ments: 

1. Certificate of nationality of the vessel. — This document is a certificate 
issued by the register officer of the port where the vessel is registered, 
and generally contains the name and tonnage of the vessel, the name 
of the master, details of how the vessel came into the possession of 
the present owner, and the name, nationality, etc., of the registered 
owner. 

«The words in italics were added to the Regulations by an amend- 
ment of February 9, 1905. 

16843—06 13 



194 APPENDIX. 

2. Passport. — This document is a demand issued by the government 
of the country to which the vessel belongs, that the vessel with her 
crew, passengers, goods, and merchandise shall be allowed free pas- 
sage without any hindrance, and generally contains the name and 
residence of the master, the name, construction, and destination of 
the vessel. 

3. Permit for navigation. — This document is issued by the officers of 
the port where the vessel fitted out for the voyage, and gives her the 
right to navigate, carrying the flag and passport of the country to 
which she belongs. The document generally contains the nature, 
quantity, and owner of the cargo, and the place of destination. 

4. Charter party. — This is a contract entered into by the owner or 
master of a vessel and the person who charters her concerning the hire 
of the whole or part of the vessel, and generally contains the name of 
the master, the name and construction of the vessel, the port where 
she is lying when chartered, the name and residence of the person 
who chartered her, the nature of the cargo, the ports where it is to be 
loaded and unloaded, and the freightage. 

5. Log book. — This is a journal kept by the master of the vessel in 
accordance with the regulations of the country to which she belongs. 

6. Ship 7 s journal. — This is a journal kept by the master of the vessel 
to make report to her owner. 

7. Contract with the shipbuilder. — This document must be carried by 
a vessel while there is no change in ownership since her completion, 
and is used to prove her nationality in case there is no passport, permit 
for navigation, or certificate of nationality. 

8. Assignment. — This document proves that the ownership of a vessel 
has been transferred to the purchaser. 

9. Bills of lading. — These are generally made separately for goods of 
different shippers. Those remaining on board are duplicates of those 
which the master has given to the shippers. A. bill of lading contains 
the name of the shipper, date and place of loading, the name and 
destination of the vessel, the nature, quantity, destination, and 
freightage of the goods. 

10. Invoice. — An invoice always accompanies goods and contains 
details of each bale of goods, the price, freightage, custom duty, and 
other charges and expenses, and the names and residences of the 
consignor and consignee. 

11. Freight list. — This contains the names of the consignor and con- 
signee, the mark and number of each bale, quantity of goods in each 
bale in detail, and accounts of freightage corresponding to the bill of 
lading, and signed generally by an agent who manages clearance of 
vessels, and by the master. 

12. Clearance. — This is issued by the officer of the custom-house 
which the vessel left last, and proves that the custom duty has been 
paid. It also contains the destination of the vessel and her cargo. 

13. Muster roll. — This contains the names of the crew, with their 
ages, duties, residences, and places of birth. 



APPENDIX. 195 

14. Shipping papers. — This is a contract signed by every member of 
of the crew, with details of the limits of the voyage and the period of 
hire contracted. 

15. Bill of health. — This is a certificate testifying that there has been 
no contagious disease prevailing in the port which the vessel left and 
that there has been no case of such disease on board the vessel. 

Chapter IV. — Blockade. 

Art. XXI. Blockade is to close an enemy's port, bay, or coast with 
force, and is effective when the force is strong enough to threaten any 
vessels that attempt to go in or out of the blockaded port or bay or to 
approach the blockaded coast. 

Temporary evacuation of a blockaded area by a squadron or man- 
of-war on account of bad weather or to attain the object of the block- 
ade does not interfere with the effectiveness of the blockade. 

Art. XXII. When a blockade is instituted the commanding officer 
of the squadron or man-of-war shall issue a declaration of blockade by 
filling out Form I with the area of blockade and the date of the decla- 
ration. 

Art. XXIII. When enforcing a new blockade after former block- 
ade has lost its effectiveness, or when there is change in the area of 
blockade, a new declaration must be made according to the preceding 
article- 

Art. XXIV. When the commanding officer of a squadron or a man- 
of-war declares a blockade, he shall take the following steps : 

1. He shall report the declaration of the blockade to the minister 
of the navy. 

2. He shall report the declaration of the blockade to every Japanese 
minister residing in the countries near the blockaded area, and shall 
request him to inform the Government of the country and all the for- 
eign ministers and consuls residing in the country to which he is 
accredited of the establishment of the blockade. 

3. He shall communicate the declaration of the blockade to all the 
foreign consuls residing in neutral districts in the neighborhood of the 
blockaded area, and shall take any other measures necessary to make 
known the fact of the blockade. 

4. He shall inform as far as possible, by means of a flag of truce, 
the proper officers and consuls of neutral countries residing within 
the blockaded area, of the declaration of the blockade. 

Art. XXV. In case the master of a vessel receives warning direct 
from an imperial war vessel, or it is clear that he knows of the exist- 
ence of the blockade from official or private information or from any 
other source, such master shall be considered to have received actual 
notice of the blockade. 

Art. XXVI. In the following cases it shall be deemed that notice 
of the declaration of the blockade has been received : 

1. The case in which the master of a vessel is considered to have 
received a notice of the blockade whether he has actually received it 



1 96 APPENDIX. 

or not, such notice having been sent to the proper authorities of the 
country to which the vessel belongs, and there having elapsed a suf- 
ficient time for the authorities to notify the residents of their nation- 
ality. 

2. The case in which the master of a vessel is considered to have 
received a notice of the blockade, the fact of the blockade having been 
made public. 

Art. XXVII. The following vessels shall be considered to have 
broken through a blockade outward: 

1. A vessel that has issued out of the blockaded area or has attempted 
to do so. 

2. A vessel that has transshipped outside the blockaded area the 
cargo of a vessel that has broken through a blockade outward, or has 
attempted to make such transshipment. 

Art. XXVIII. In any of the following cases the preceding article 
shall not be applied: 

1. When a vessel comes out of the blockade area, having a permit 
from the Imperial Government or from the commanding officer of the 
squadron or war vessel on duty of blockade. 

2. When a vessel which entered the blockaded port during the 
existence of the blockade, having received no notice of the fact, sails 
out of the port without any cargo. 

3. When a vessel w 7 hich was in the port at the time of the declara- 
tion of the blockade sails out of the port without any cargo. 

4. When a vessel which was in the port and was loaded before the 
declaration of the blockade sails out. 

Art. XXIX. Any vessel which has received notification of a block- 
ade shall be considered to have violated the blockade inward in the 
following cases: 

1. When such vessel has passed into the blockaded area or has 
attempted to do so. 

2. When such vessel, lying in the neighborhood of the blockaded 
area, is considered to be steering into the area, no matter what port of 
destination is mentioned in the ship's papers. 

3. When such vessel has transported or attempted to transport cargo 
to a blockaded place, by transshipping to another vessel outside of the 
blockaded area in order that the latter may pass the line of blockade. 

4. When such vessel is bound for the blockaded port. 

Art. XXX. To vessels coming under one of the following heads, 
the preceding article shall not apply: 

1. When a vessel has permission of the Imperial Government or of 
the commanding officer of the blockading squadron or man-of-war. 

2. When the master of the vessel has ventured to make a blockaded 
port his destination anticipating termination of the blockade and im 
tending to steer for another port in case the blockade is still in force, 
or when there are extenuating circumstances and the vessel comes 
from a very distant place, 



APPENDIX. 197 

3. When it is clear that the master of a vessel bound for a blockaded 
port has abandoned the idea of reaching that port. 

4. When a vessel enters a blockaded area, it having become necessary 
to put into port from want of provisions, rough weather, or any other 
unavoidable circumstances, and there being no other port or bay to 
put in. 

Art. XXXI. When a blockade is discontinued the commanding offi- 
cer of the squadron or the man-of-war shall immediately report it to 
the minister of the navy and shall take necessary steps to make it gen- 
erally known. 

Chapter V. — Visit, search, and capture. 

Art. XXXII. Any private vessel regarding which there is suspicion 
which would justify her capture shall be visited and searched no mat- 
ter of what national character she is. 

Art. XXXIII. A neutral vessel under convoy of a war vessel of her 
country shall not be visited nor searched if the commanding officer of 
the convoying war vessel presents a declaration signed by himself 
stating that there is on board the vessel no person, document, or goods 
that are contraband of war, and that all the ship's papers are perfect, 
and stating also the last port which the vessel left and her destination. 
In case of grave suspicion, however, this rule does not apply. 

Art. XXXIV. In visiting or searching a neutral mail ship if the 
mail officer of the neutral country on board the ship swears in a written 
document that there are no contraband papers in certain mail bags 
those mail bags shall not be searched. In case of grave suspicion, 
however, this rule does not apply. - 

Art. XXXV. All enemy vessels shall be captured. Vessels belong- 
ing to one of the following categories, however, shall be exempted from 
capture if it is clear that they are employed solely for the industry or 
undertaking for which they are intended: 

1. Vessels employed for coast fishery. 

2. Vessels making voyage for scientific, philanthropic, or religious 
purposes. 

3. Light-house vessels and tenders. 

4. Vessels employed for exchange of prisoners. 

Art. XXXVI. Any vessel of the Empire which carries on commerce 
with the enemy state or its subjects or makes voyage with such inten- 
tion shall be captured, unless such vessel has no knowledge of the out- 
break of war or has permission from the Imperial Government. 

Art. XXXVII. Any vessel that comes under one of the following 
categories shall be captured, no matter of what national character it is: 

1. Vessels that carry persons, papers, or goods that are contraband 
of war. 

2. Vessels that carry no ship's papers, or have willfully mutilated or 
thrown them away, or hidden them, or that produce false papers. 

3. Vessels that have violated a blockade, 



198 APPENDIX. 

4. Vessels that are deemed to have been fitted out for the enemy's 
military service. 

5. Vessels that engage in scouting or carry information in the 
interest of the enemy, or are deemed clearly guilty of any other act 
to assist the enemy. 

6. Vessels that oppose visitation or search. 

7. Vessels voyaging under the convoy of an enemy's man-of-war. 
Art. XXXVIII. Vessels carrying contraband persons, papers, or 

goods, but which do not know the outbreak of war shall be exempt 
from capture. 

The fact that the master of a vessel does not know the persons, 
papers, or goods on board to be contraband of war, or that he took 
them on board under compulsion, shall not exempt the vessel from 
capture. 

Art. XXXIX. Vessels that come under one of the following cases 
may be captured no matter of what national character they are: 

1. When a vessel does not produce the necessary papers or they are 
not kept in good order. 

2. When there are contradictions among the ship's papers or be- 
tween the statements of the master and the ship's papers. 

3. Besides the above two cases, when as the result of visitation or 
search there is sufficient suspicion to justify capture according to 
articles from XXXV to XXXVII. 

Chapter VI. — Disposition of captured vessels and their cargo and persons 

on board. 

Art. XL. Enemy vessels shall be forfeited. 

Of the cargo on board, mentioned in the above clause, enemy goods 
shall be forfeited. In case of an armed vessel, however, the whole 
cargo shall be forfeited. 

Art. XLI. Japanese vessels which carry on commerce with the 
enemy state or its subjects or which are making voyage with such 
intention shall be forfeited. 

Of the cargo on board the vessels mentioned in the above clause, 
all the goods owned by the owners of the vessels and all the enemy 
goods shall be forfeited. 

Art. XLII. Contraband persons shall be made prisoners and con- 
traband papers shall be forfeited. 

Any vessel carrying contraband persons or papers and the goods on 
board which belong to the owner of such vessel, shall be forfeited, 
unless the captain proves that not by his own fault he is unacquainted 
with the fact. 

Art. XLIII. Contraband goods and all goods on board belonging 
to the owner of the contraband shall be forfeited. 

When the owner of a vessel carrying contraband is also the owner 
of the contraband goods, the vessel shall be forfeited. 



APPENDIX. 199 

Art. XLIV. A vessel which has taken in contraband goods, using 
deceitful means, and all the goods on board belonging to the owner of 
such vessel, shall be forfeited. 

Art. XLV. A vessel that has broken through a blockade and her 
cargo shall be forfeited. If the owner of the cargo proves that he is 
innocent of such breach of blockade, such cargo shall be released. 

Art. XLVI. Vessels that are recognized to have been fitted out 
for the enemy for military purposes, and the goods belonging to the 
owners of such vessels, shall be confiscated. 

Art. XL VII. Vessels ascertained to have scouted or carried infor- 
mation to give benefit to the enemy or to have done any other acts to 
assist him, and all goods belonging to the owners of such vessels, shall 
be confiscated. 

Art. XLVIII. Vessels that have opposed visit or search, and all 
the goods belonging to the owners of such vessels, shall be forfeited. 

Art. XLIX. Vessels voyaging under convoy of the enemy's men- 
of-war, and all goods belonging to the owners of such vessels, shall be 
forfeited. 

Art. L. The masters and crews of enemy's merchant vessels may 
be made prisoners. 

Passengers, and the master and crew of a vessel not enemy, shall 
not be made prisoners. In case it is necessary to call them as wit- 
nesses they may be detained. 

Chapter VII. — Procedure in capturing vessels. 

Art. LI. In visiting or searching a vessel the captain of the man-of- 
war shall take care not to divert her from her original course more 
than necessary and as far as possible not to give her inconvenience. 

Art. LII. The captain of an Imperial man-of-war may chase a ves- 
sel without hoisting the ensign of the Imperial navy or under false 
colors. But before giving the vessel the order to stop he must display 
the ensign of the Imperial navy. 

Art. LIII. The captain of an Imperial man-of-war shall in no case 
order the vessel to be visited or searched to send to his ship her boat, 
crew, or papers. 

Art. LIV. The captain of the man-of-war shall first communicate 
by signal flag or steam whistle his intention to visit the vessel. At 
night he shall display a white light above the ensign in place of the 
signal flag. 

In case it is impossible on account of bad weather to communicate 
his intention by any of the means mentioned above, or in case the 
vessel does not make any response to the above signals, he shall give 
order to stop by firing two blank cartridges, and if there is further 
necessity, by firing a shot ahead of the vessel. 

If after giving the above warning the vessel still fails to obey the 
order to stop, fire shall be directed first at the yards and then at her 
hull. 



200 APPENDIX. 

Art. LV. On the vessel's stopping, the captain of the man-of-war 
shall send a boat to her with a boarding officer and his assistant. 

The crew of the boat shall not wear arms but they may be kept in 
the boat. 

When boarding the vessel the boarding officer may take with him, 
if he deems it necessary, not more than two of the boat's crew. 

Art. LVI. The boarding officer, if he has ground for suspicion, shall 
demand with proper courtesy to inspect the ship's papers. When the 
master of the vessel refuses to produce them, the boarding officer may 
insist upon it. 

Art. LVII. When the boarding officer deems, after inspecting the 
papers, that the vessel is not to be captured, she shall be released at 
once by order of the captain of the man-of-war. 

Art. LVIII. When the boarding officer, after inspecting the papers, 
deems the vessel to be suspicious, he shall search her. 

In this case he may, if he deems it necessary, call the crew of the 
boat on board to assist, or he may ask for assistance from the ship 
from which he was sent. 

Art. LIX. Search shall be made together with the master of the 
vessel or his representative. 

Art. LX. The boarding officer shall require the master of the vessel 
or his representative to open any locked place or furniture, and if the 
latter refuses to comply the boarding officer may take steps required 
for the occasion. 

Art. LXI. The boarding officer if he finds, while making search, 
that there is no ground for capturing the vessel shall discontinue the 
search, and the vessel shall be released at once by the order of the 
captain of the man-of-war. 

Art. LXI I. The boarding officer, before he leaves the vessel, shall 
ask the master whether he has any complaint regarding the procedure 
of visiting or searching, or any other points, and if the master makes 
any complaint he shall request him to produce them in writing. 

Art. LXIII. The boarding officer shall enter in the log book of the 
vessel when and where the visit or search was made, the name of the 
man-of-war from which he was sent, and the name and rank of her 
captain, and shall sign his own name and rank. 

Art. LXIV. When a vessel is to be released on the ground that she 
has not received notification of blockade, or as coming under section 2 
of Article XXX, or as not knowing the outbreak of the war under 
Articles XXXVI or XXXVIII, the boarding officer shall enter a 
warning according to Forms II or III in the vessel's logbook or upon 
the paper certifying her nationality, and shall order the vessel to 
retrace or to change her course, or take any other proper measure. 

Art. LXV. After visit and search has been made, if the captain of 
the man-of-war still has suspicion of the vessel, he shall order the 
boarding officer to hear the explanation of her master, and if after 
these explanations there still appear to be grounds for capturing her, 
such vessel shall be captured. 



APPENDIX. 201 

Art. LXVI. In deciding whether a vessel is to be captured or not, 
the nature of the vessel, her equipments, cargo, and papers, the master 
and crew and their testimony, etc., shall be taken into consideration. 

Art. LXVII. If the captain of the man-of-war decides to capture 
a vessel he shall inform her master of the reason, and shall take pos- 
session of the vessel by sending one officer and the required number 
of petty officers and men. If on account of bad weather or any other 
cause it is impossible to dispatch these officers and men, the captain 
of the man-of-war shall order the vessel to haul down her colors and 
to steer according to his direction. If the vessel does not obey the 
orders of the captain of the man-of-war, he may take any measures 
required for the occasion. 

Art. LXYIII. When a mail steamer is captured, mail bags consid- 
ered to be harmless shall be taken out of the ship without breaking 
the seal, and steps shall be taken quickly to send them to their desti- 
nation at the earliest date. 

Art. LXIX. The captain of the man-of-war shall land at a conven- 
ient port when possible all the passengers of a captured vessel, except 
those who are deemed to be contraband persons or those who must 
be detained as witnesses. 

Art. LXX. If the captain of a man-of-war, after capturing a vessel, 
ascertains that the capture was unlawful, he shall instantly release 
her. 

Art. LXXI. The captain of a man-of-war shall cause due notes to 
be entered in the log book of his ship concerning a visit, search, or 
capture. 

Art. LXXII>The captain of a man-of-war shall immediately sub- 
mit to the minister of the navy detailed accounts of visit, search, or 
capture, with his opinions. 

Art. LXXIII. When the captain of a man-of-war recaptures a Jap- 
anese or a neutral vessel captured by the enemy, he may release her 
if she has not yet been taken into an enemy port or has not been used 
for military purposes. 

Chapter VIII. — Procedure after capture. 

Art. LXXIV. When a vessel has been taken possession of, the 
captain of the man-of-war shall seize the documents concerning the 
vessel and her cargo and all other documents on board ; arrange, num. 
ber, and seal them; and the master of the vessel and the captain of the 
man-of-war shall sign on them; and a certificate prepared according 
to Form IV shall be attached. 

The certificate of the above clause is generally made by the officer 
who received or found the documents. 

Art. LXXV. When documents are found which have been muti- 
lated or thrown away or hidden, the captain of the man-of-war shall 
deal with them according to the preceding article; but in this case the 
certificate shall be according to Form V. 



202 APPENDIX. 

Art. LXXVI. The captain of the man-of-war shall prepare in dupli- 
cate a certificate as to money, negotiable notes, and other valuables on 
board the vessel, and shall give one copy to the master of the vessel. 

Art. LXXVII. The captain of the man-of-war shall, so far as possi- 
ble, close and seal the holds of the captured vessel and shall take care 
to prevent embezzlement of any cargo, furniture, or any other things 
on board. 

Art. LXXVIII. The captain and the officers of the man-of-war 
shall treat with proper courtesy the master and crew of the captured 
vessel and those who are to be made prisoners, and shall pay proper 
attention to the protection of their personal effects. Those who are 
to be made prisoners may be kept under restraint as required, but 
other persons on board shall not be restrained, unless there is a spe- 
cial reason. < 

Art. LXXIX. The captain of the man-of-war shall send on board 
the captured vessel a prize officer and the requisite number of petty 
officers and men, and shall send the vessel and her cargo to a port 
where there is an Imperial prize court or to a Japanese port in the 
neighborhood of such port. 

Art. LXXX. The captain of the man-of-war may request the mas- 
ter and crew of the captured vessel to assist in navigating the vessel 
under the direction of the prize officer; and in case such request is 
not complied with, he may insist upon it. 

Art. LXXXI. The captain of the man-of-war shall send into port 
on board the captured vessel the master and crew, and all the cargo 
and certificates, and the ship's papers, so far as possible in the same 
condition in which they were found at the time of capture. 

The captain of the man-of-war, when he thinks it necessary, shall 
send an officer who can testify to the circumstances of the capture. 

Art. LXXXII. When the captain of the man-of-war thinks that it 
is not proper to send in the captured vessel, the master, and the whole 
crew, he shall send at least three or four principal members of the 
crew as witnesses, and two of them shall be selected from the master, 
chief purser, mates, and chief seaman. ( 

That part of the crew taken to another vessel shall be sent without 
delay to the port where the captured vessel has been sent. 

Art. LXXXIII. In the case of the preceding article, the captain of 
the man-of-war shall order the prize officer to prepare a certificate 
according to Form VII, stating that part of the crew taken to another 
vessel and the reason for it. 

Art. LXXXIV. When there are among the cargo of a captured 
vessel any goods that putrify easily or are not adapted for transpor- 
tation, the captain of the man-of-war shall appoint a board from 
among the officers of the ship who are qualified for such work, and 
shall order them to submit a report. 

The substance of such investigation shall be entered in the log book. 

Art. LXXXV. When the board reports that there are among the 
cargo goods that are not adapted for transportation, the captain of the 



APPENDIX. 203 

man-of-war shall sell such goods at the nearest Japanese port, or at a 
neutral port, if permission is obtained from the authorities of the 
neutral State. Any goods that are not salable may be disposed of as 
seems best. 

Art. LXXXVI. Before putting up such goods for sale the captain 
of the man-of-war shall select the most competent appraisers possible 
and shall have the whole of the cargo, or that part of it which is to be 
sold, appraised in writing. 

Such sale, when possible, shall be made by auction, in the presence 
of the prize officer and a Japanese consul, if convenient, or any other 
Japanese officer lying near the place where the sale is to be made. 

Art. LXXXVII. The captain of the man-of-war shall order the 
prize officer to prepare a certificate according to Form VIII, concern- 
ing the procedure of the sale, and shall send the certificate, accom- 
panied by the report of the board of survey, appraisements, accounts 
of the sale, and other documents, together with the vessel. 

Art. LXXXVIII. When the captain of a man-of-war deems a cap- 
tured vessel unfit to be sent into port as above prescribed, he shall 
appoint from among the officers a competent board to investigate the 
matter and direct them to submit a report. 

The gist of their report shall be entered in the log book. 

Art. LXXXIX. If the board reports that the captured vessel is 
unfit to be sent into port as prescribed, the captain of the man-of-war 
shall send the vessel to the nearest Japanese port or the nearest neu- 
tral port, with the consent of the neutral authorities. 

Art. XC. In the case of the preceding article the captain of the 
man-of-war shall order the prize officer to prepare a certificate accord- 
ing to Form IX, in which the circumstances of sending the vessel to 
the nearest Japanese port or to the nearest neutral port shall be stated 
in detail, and the captain shall order the prize officer to send this 
certificate, accompanied by the report of the board, and the witnesses, 
ship's papers, and any other documents required for judicial examina- 
tion, to the nearest Imperial prize court. 

Art. XCI. In the following cases, and when it is unavoidable, the 
captain of the man-of-war may destroy a captured vessel or dispose of 
her according to the exigency of the occasion. But before so destroy- 
ing or disposing of her he shall transship all persons on board, and as 
far as possible the cargo also, and shall preserve the ship's papers and 
all other documents required for judicial examination: 

1. When the captured vessel is in very bad condition, and can not 
be navigated on account of the heavy sea. 

2. When there is apprehension that the vessel may be recaptured 
by the enemy. 

3. When the man-of-war can not man the prize without so reducing 
her own complement as to endanger, her safety. 

Art. XCII. In the cases of the above article the captain of the 
man-of-war shall direct the prize officer to prepare a certificate stating 
the circumstances of inability to send in the prize and the details of 



204 APPENDIX. 

her disposal, and to send it to the nearest prize court, together with 
persons and cargo removed from the vessel, the ship's papers, and all 
other documents required for judicial examination. 

Art. XCIII. A prize officer, when ordered to take possession of a 
captured vessel, shall prepare an inventory according to Form X of 
the stores, furniture, and cargo, so far as it can be ascertained with- 
out disturbing the stowage. In preparing this inventory the prize 
officer may request assistance of the master of the vessel, and shall 
give him a copy of the inventory signed by himself. 

Art. XCIV. The prize officer shall keep a journal in which he shall 
enter events concerning the vessel, cargo, and persons on board. 

Art. XCV. When a prize officer, while in charge of a captured ves- 
sel, receives any new documents or finds or picks up those mutilated 
or thrown away or hidden, he shall put them in order, number them, 
and affix to them a certificate prepared according to Form XI. 

Art. XCVL The prize officer shall pay the greatest attention to 
navigating captured vessel, and shall endeavor not to cause any dam- 
age to the vessel or her cargo. 

Art. XCV1I. The prize officer may land or transship the persons 
and cargo on board the captured vessel, but only in case of pressing 
necessity. In this case he shall prepare a certificate according to Form 
XII, stating the persons and goods landed or transshipped and the 
reason for such action. The persons and goods landed or transshipped 
shall be sent without delay by the most convenient means to the 
Imperial prize court. 

Art. XCVIII. The prize officer, when he arrives at the place of 
destination, shall deliver the captured vessel to the prize court and 
shall make a request for examination. 



FORMS. 
Form I. (Referred to in Article XLVII. ) 

DECLARATION OF BLOCKADE. 

I hereby declare that on the day of last the , from 

f in latitude , longitude , to , in latitude , 

longitude , were placed in a state of blockade "by a competent 

force of His Imperial Japanese Majesty's ships, and are now in such state 
of blockade; and that all measures authorized by the law of nations 
and the respective treaties between the Empire of Japan and the dif- 
ferent neutral powers will be enforced on behalf of His Imperial Jap- 
anese Majesty's Government against all vessels which may attempt 
to violate the blockade. 

Given on board His Imperial Japanese Majesty's ship at 

this day of , 19... 

Signed , 

Commander in Chief {Admiral in Command) of Squadron. 



APPENDIX. 205 

Form II. ( Referred to in Article LXIV. ) 

WARNING OF BLOCKADE. 

I have visited the vessel, the , this day by the order of 

Captain , of His Imperial Japanese Majesty's ship, , and 

warned that , from , in latitude , longitude , 

to , in latitude , longitude , is under blockade. 

Dated this day of , 190. .. 

Latitude , longitude 



His Imperial Japanese Majesty's Ship 



Form III. (Referred to in Article LXIV.) 

WARNING OF HOSTILITIES. 

I have visited the vessel, the , this day by the order of 

Captain , of His Imperial Majesty's ship and warned 

that the state of war has existed and exists between the Empire of 
Japan and the Empire of 

Dated this day of , 190... 

Latitude , Longitude 



His Imperial Japanese Majesty's Ship 



Form IV. (Referred to in Article LXXIV.) 

CERTIFICATE CONCERNING SHIP'S PAPERS RECEIVED AT THE TIME OF 
THE CAPTURE OF THE VESSEL. 

Name of the vessel Name of the master I hereby 

certify : 

1. That I was present when His Imperial Japanese Majesty's ship 

captured the above-mentioned vessel on the day of , 

190... 

2. That the documents attached, that is, from No to No 

are all the papers found on board and received at the time of the 
capture. 

3. That they are exactly in the same condition in which they were 
received, and no change has been made except that they received their 
numbers. 

Dated this day of , 190... 



His Imperial Majesty's Ship 



206 APPENDIX. 

Form V. (Referred to in Article LXXV.) 

CERTIFICATE CONCERNING PAPERS THROWN AWAY (MUTILATED OR 
THROWN AWAY OR HIDDEN') AT THE TIME OP THE CAPTURE. 

Name of the vessel, Name of the master, I hereby 

certify: 

1. That I was present when His Imperial Japanese Majesty's ship 

captured the above-mentioned vessel on the day of , 

190... 

2. That minutes before the capture (or ), I actually saw 

at such and such place bundles of papers thrown away from a 

porthole of the above-mentioned vessel; I lowered the boat instantly; 

and the boat's crew picked up bundles of the papers, the other 

having gone to the bottom (in case papers are mutilated or hidden, 
state the circumstances.) 

3. That the papers attached, that is, from No. 1 to No are all 

the documents picked up at that time, and except they received their 
numbers they are in the same condition in which they were found, 
and no change has been made in them. 

Dated this day of , 19... 



His Imperial Majesty's Ship 



Form VI. (Referred to in Article LXXVI. ) 

CERTIFICATE AS TO MONEY AND VALUABLES FOUND ON BOARD THE PRIZE. 

The , master. 

I, the undersigned, holding the rank of in His Imperial 

Japanese Majesty's navy and commanding his Imperial Japanese 

Majesty's ship , do hereby certify that the following is a correct 

account of all moneys and valuables found on board the above-named 

vessel detained by me as lawful prize of war on the day 

of ,19... 

(Here state the several articles, distinguishing whether they were 

voluntarily given up or were found concealed, and where. ) 

...... ....... 

Commanding His Imperial Japanese Majesty* s Ship. 

Note. — I do hereby declare that on the day of , 19. . , I 

delivered a copy, signed by myself, of the above certificate to the 

master of the and that 

(Here state whether or not the master made any objection, and if 

he did, what the nature of the objection was. ) 

Signed this day of , 190... 

...... ....... 

Commanding His Imperial Japanese Majesty's ship 

(A copy of this certificate must in all cases be delivered to the 
master. ) 



APPENDIX. 207 

Form VII. Referred to in Article LXXXIII. ) 

CERTIFICATE TO BE ISSUED WHEN THE CAPTAIN OF THE MAN-OF-WAR 
TRANSSHIPPED THE CREW OF A CAPTURED VESSEL TO ANOTHER VESSEL. 

The , master. 

I hereby certify, 

1. That Captain , of His Imperial Japanese Majesty's ship 

, has captured the above-mentioned vessel on the day of 

, 19.., in longitude , latitude 

2. That on the day of , 19. . , the said Captain had 

transshipped of the crew before he sent the vessel to port where 

there is a prize court. 

3. That the reasons for such transshipment of the crew are 

Dated this day of , 19... 



His Imperial Japanese Majesty's ship , Prize Officer. 



Form VIII. (Referred to in Article LXXXVII. ) 

CERTIFICATE CONCERNING SALE OF CARGO. 

The , master. 

I hereby certify, 

1. That Captain , of His Imperial Japanese Majesty's ship 

, has captured the above-mentioned vessel on the day of 

, 19.., in longitude , latitude 

2. That on the day of , 19.., the captain ordered the 

survey of the cargo. 

3. That the document (A) annexed is the report of the board of 
survey. 

4. That as the result of the survey the captain ordered me to take 
the vessel to port at once and to sell the cargo. 

5. That on the day of , 19.., I transported the cargo to 

the above-mentioned port and ordered and , who are 

most skillful appraisers, to appraise the goods. 

6. That before appraising the above mentioned and 

swore that they would discharge their duties impartially, and the 
document (B) annexed are their written oath. 

7. That the documents (C) annexed are the appraisement of 

and 

8. That on the day of , 19.., I gave order to sell the 

goods by auction, and the document (D) annexed is the advertise- 
ment made at 

9. That on the day of , 19. . , the auction advertised was 

held, and I (Japanese consul, or Japanese officer residing in the neigh- 
borhood of the place where the sale was made) was present and wit- 
nessed the sale. 



208 



APPENDIX. 



10. That the document (E) annexed is the account of sale given me 
by , the goods having been sold to 

11. That on the day of ,19.., I have turned over to 

the sum of yen , mentioned in the accounts of sale. 

Dated this day of , 19. .. 



Hw Imperial Japanesi Majesty's ship , Prize Officer. 



Form IX. (Referred to in Article XC.) 

CERTIFICATE TO BE ISSUED WHEN A CAPTURED VESSEL IS SENT TO A 
NEUTRAL PORT (THE NEAREST- JAPANESE PORT). 

The , master. 

I hereby certify, 

1. That Captain , of His Imperial Japanese Majesty's ship 

, has captured the above-mentioned vessel on the day of 

, 19. . , in longitude , latitude 

2. That on the day of , 19.., the said captain ordered 

survey of the vessel. 

3. That the document (A) annexed is the report of the board of 
survey. 

4. That as the result of the survey the captain ordered me to navi- 
gate the vessel to 

5. That in accordance with the above order I reached on 

the day of , 19. . , and turned over the vessel to 

Dated this day of , 19... 



His Imperial Japanese Majesty's Ship , Prize Officer. 



Form X. (Referred to in Article XCIII.) 

INVENTORY OF THE STORES, FURNITURE, AND CARGO OF THE PRIZE. 

The , master. 

I, , holding the rank of in His Imperial Japanese 

Majesty's navy, and the prize officer in charge of the above-named 
vessel, do hereby certify that the following is a correct inventory of 
the stores, furniture, and cargo of the said vessel, so far as the said 
can be ascertained without disturbing the stowage 

Signed this day of , 19... 

Note. — I do hereby declare that on the day of , 19.., I 

delivered a copy, signed by myself, of the above inventory to the 
master of the , and that (Here state whether or not 



APPENDIX. 209 

the master made any objection, and, if he did, what the nature of the 
objection was.) 
Signed this day of , 19. . . 



(A copy of this inventory must be delivered to the master.) 



Form XI (Referred to in Article XCV.) 

CERTIFICATE CONCERNING SHIP'S PAPERS RECEIVED (MUTILATED AND 
THROWN AWAY OR HIDDEN) DURING THE VOYAGE. 

The , master. 

I hereby certify: 

1. That on the day of , 19. ., I was ordered to navigate 

the above-mentioned vessel to for adjudication. 

2. That during the voyage, on the day of , 19.., I re- 
ceived from the master of the vessel the documents annexed — that is, 

from No. 1 to No ( Here circumstances to be noted, if any. Same 

in the case of mutilation or concealment. ) 

3. That the above-mentioned documents are all the papers I have 
received, and they are in the same condition as when received and no 
change has been made in them, except that I numbered them. 

Dated this day of , 19... 



His Imperial Japanese Majesty's Ship . _ % , Prize Officer. 



Form XII. (Referred to in Article XCVII.) 

CERTIFICATE TO BE ISSUED WHEN THE CREW OR CARGO OF A CAPTURED 

VESSEL IS LANDED. 

The , master. 

I hereby certify: 

1 . That on the day of , 19 . . , I received order to navigate 

the above-mentioned vessel to for adjudication. 

2. That during the voyage I landed (transshipped) from the vessel 
the following: 

Goods or persons landed (transshipped) and the place 
where landed. 

3. That the reasons for landing or transshipping are 

Dated this day of , 19 . . . 

...... ....... 

His Imperial Japanese Majesty's Ship , Prize Officer. 

o 

16843—06 14